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March 21, 2022

Costly for Everyone: Presuming People Should Be Held Pre-Trial Has Significant Economic and Fiscal Costs

The right to due process and a presumption of innocence are central to promoting fairness and justice within our criminal legal system. However, these principles were undermined by Virginia’s pre-trial practices in the past, which presumed that people charged with certain crimes did not qualify for bail. Defendants would have to “rebut” or prove that presumption false. Virginia legislators acted last year to reform Virginia’s pre-trial detention system by providing an opportunity for an individualized assessment of risk in the place of a number of presumptions against pre-trial release. However, some legislators tried to roll back that progress this year, with the House of Delegates passing a bill to revert Virginia’s law to almost exactly what it was before the recent reforms. Thankfully, a Senate committee defeated this proposal. Reverting to the prior policy would have created significant economic harms for Virginia families and communities, as well as fiscal costs for the state and local governments.

Currently, as a result of the 2021 reform, judicial officers consider “all relevant information” when deciding whether to grant release pre-trial and on what terms, including “(i) the nature and circumstances of the offense; (ii) whether a firearm is alleged to have been used in the commission of the offense; (iii) the weight of the evidence; (iv) the history of the accused or juvenile, including his family ties or involvement in employment, education, or medical, mental health, or substance abuse treatment; (v) his length of residence in, or other ties to, the community; (vi) his record of convictions; (vii) his appearance at court proceedings or flight to avoid prosecution or convictions for failure to appear at court proceedings; and (viii) whether the person is likely to obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness, juror, victim, or family or household member.”

House Bill 812, which would have nearly reverted Virginia to the old policy, would have replaced this individualized assessment with a “rebuttable presumption” against bail in many circumstances, including for many immigrants in cases where other individuals would not be subjected to that presumption. While a “rebuttable presumption” may sound similar to an individualized assessment, starting with a presumption against pre-trial release and creating barriers for overcoming that presumption will lead to more people being held pre-trial. Analysis by Virginia’s Compensation Board, which acts as the state clearinghouse for jail-related data, finds that “based on analysis of the length of stay for pre-trial individuals, the added average length of stay for returning to a presumptive denial of bail would be 47.54 days.”

For the state and local governments, the costs of holding people pre-trial are clear. As noted by the fiscal impact statement for HB 812, the estimated average state support for local jails averaged $37.58 per inmate, per day in the 2019-2020 budget year. And, although the fiscal impact statement focuses on state costs, local governments pay the majority of the jail costs, paying an average of $55.30 per inmate, per day in operating costs, plus $7.11 per inmate, per day toward debt payments on jails. 

Holding people before trial – the period of time when they have not been convicted of anything – also has costs for individuals, families, and communities, including the state and local governments. In addition to the denial of liberty for individuals and stress for families of pre-trial detention, holding people before trial reduces current and future employment prospects. This is in part because people held pre-trial are less able to participate in preparing their defense and may feel pressured to accept a guilty plea for time served to avoid further pre-trial detention, resulting in long-term negative harms to employment due to discrimination against people with criminal records. A recent article published in the American Economic Review found that pre-trial detention decreases the probability of employment three to four years after the bail hearing by 9.4 percentage points and also found that the “net benefit of pretrial release at the margin [cases that are close to the decision line for pre-trial release] is between $55,143 and $99,124 per defendant.” Other recent studies published by the Brookings Institution and Cato Institute found that counties with higher rates of pre-trial detention have lower rates of economic mobility for children and that these effects persist with or without controlling for other factors. Extended periods of pre-trial detention (over three days) are also associated with decreased residential stability and negative impacts on children after controlling for other factors. For immigrants, the risks of pre-trial detention are magnified, including the risk that they get swept up in the deportation system based on relatively minor charges. 

Despite the likelihood of significant additional days of pre-trial detention and costs of holding people in jail identified in the fiscal impact statement, HB 812 was not referred to the House Appropriations Committee before being passed by the House of Delegates. Should similar legislation be proposed in future years, policymakers should consider the social, economic, and fiscal consequences of increasing pre-trial detention.

Budget & Revenue, Decriminalizing Poverty

Laura Goren

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