The Virginia General Assembly passed legislation last week that lawmakers said will increase transparency and equity in the judicial system, which disproportionately impacts communities of color.
The bills, introduced by Sen. Louise Lucas, D-Portsmouth, and Del. Charniele Herring, D-Alexandria, will create a centralized, publicly-accessible data collection system on pretrial detention. Senate Bill 1391 and House Bill 2110 both passed on Feb. 18.
Pretrial detention is the practice of holding a defendant in jail until trial. It is used, officials say, to guarantee the defendant appears in court and to ensure public safety. The compiled pretrial data would be distributed annually by the Virginia Criminal Sentencing Commission, or VCSC.
The bills require the VCSC to compile and share data on the sex, age, race and ZIP code of an individual charged with a crime. The individual’s criminal background will also be included in the report without their name. No case identifying information could be accessed through the Virginia Freedom of Information Act, or made publicly available, per the bills.
Maisie Osteen, an attorney at the Legal Aid Justice Center, said the bills are a tremendous opportunity to understand release conditions like bond or pretrial services. She said they also illuminate trends in the racial, gender and economic demographics of people in jail.
“This is the heart of transparency,” Osteen said. “It’s opening up the actual raw data to the public in a downloadable, accessible format.”
In Virginia, 46% of the total jail population is being held pretrial, according to the Legal Aid Justice Center.
Lucas and Herring drafted the bills at the Virginia State Crime Commission’s recommendation. The lawmakers used data from the commission’s 2017 Pretrial Data Project, which sought to study the different types of release mechanisms involved in pretrial services, such as bond or pretrial holdings. Of the individuals included in the data, 40% were Black, though this group makes up 20% of the commonwealth’s total population.
Cherise Fanno Burdeen, an executive partner at the Pretrial Justice Institute, said the commission’s new role was the first step in creating a more equitable Virginia. The institute provides information on current criminal justice issues and works to reform pretrial policies.
“The point of the bill is for advocates to take what they already knew was true about the way the system operates in terms of its disproportionate impact on communities of color,” Burdeen said. “And surely, its disproportionate impact on poor Virginians of all races.”
Being in jail before trial can drastically destabilize the accused and their families, according to a 2020 National Legal Aid & Defender Association (NLADA) study. The research found that as a result of pretrial detention people were more likely to lose connections to employment, housing and family.
Osteen said most people are held pretrial because they can’t make bail and are more likely to have non-salaried employment. She said they stand a greater chance of losing employment after a few days of being unable to report to work. This financial instability can then lead to a loss of housing or loss of children.
The NLADA study also found that those held in pretrial detention are more likely to be rearrested for new crimes, and more likely to have longer prison sentences.
Osteen said that when a judge sees a defendant who “looks like a criminal” it can lead to harsher sentencing.
“I’ve heard judges say, honestly, ‘It’s just easier to send somebody to prison if they show up in a prison or jail outfit, then I already know they’ve been plucked from their lives,’” Osteen said.
She said the judges are less likely to feel as if sentencing is the destabilization factor because it has already happened to the defendant.
Osteen said she is excited by the potential impact data collection will have on understanding the commonwealth’s justice system. She wishes the legislation included information about why judges decide to detain a defendant or not, a standard not currently required, Osteen said.
According to the VCSC, this legislation will cause a significant increase in the agency’s workload. The agency expects it will need additional funding to finance two new salaried positions.