Op-ed: Pre-trial Sentencing Transparency

On any given night over 28,000 people sit in Virginia jails.  Nearly half of them (46%) have not been convicted of any crime, but await trial.  This problem is not new, and is getting worse. The state’s own data revealed that between 2012 and 2017, the average daily population of people held in Virginia jails pretrial increased by 10 percent.  Lack of wealth should not be a factor in determining justice, yet statistics show that poor people and people of color are disproportionately affected by the current system. As a result, the current process leads to unnecessary and costly pretrial detention.

In order to implement effective and sustainable reform of the pretrial system, we need to better understand the current system and how it is used.  To that end, working with the ACLU of Virginia, Legal Aid Justice Center, Richmond Community Bail Fund and several other Virginia advocacy groups, Delegate Jennifer Carroll Foy and I introduced legislation (HB 2121 and  SB 1687)  to create more transparency and accountability in the pretrial process.  The bill would require the state to collect data in every locality relating to bail determinations for any person who is held in custody pending trial or hearing for an offense, including data on length of stay for any period of pretrial incarceration, racial demographics of who is coming through the pretrial system, and indigency status. SB 1687 also creates a general presumption in favor of pretrial release in our bail laws.

Unquestionably, the state needs to start collecting the type of data mandated by SB 1687. In fact, SB 1687 was referred to the Virginia State Crime Commission (“the Commission”)  for inclusion in its Pre-Trial Data Project, a collaborative effort between all three branches of government and eight different state and local agencies who collectively control all of Virginia’s criminal justice data. Largely focused on how effective various pretrial release mechanisms are at ensuring public safety and appearance at court proceedings, the Commission’s project captured a snapshot of the pretrial system by tracking people who came through the system in October 2017. While the project, launched in 2016, represents a first-of-its-kind study in the state of Virginia, because of its narrow focus, it has not yet been able to answer important questions like how many indigent people come through Virginia’s criminal justice system.

Beginning this Spring, the Commission will broaden the scope of the Pre-Trial Data Project by convening stakeholders to develop a plan for statewide case tracking across the criminal justice system, including the pretrial process. The Commission intends to propose at its December 2019 meeting legislative recommendations for the 2020 session.  Based on SB 1687’s referral to the Commission, the expectation is that its staff will incorporate the broad data mandate of SB 1687 into any 2020 legislative recommendations, and I will work with the Crime Commission to ensure that happens because the state must begin to act swiftly to understand exactly what is contributing to our alarming pretrial detention numbers.