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Pretrial detention presumptions nixed by Virginia legislation

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Pretrial detention- Jail cell photo

Pretrial detention presumptions are reversed by Virginia legislation awaiting the governor’s signature

Pretrial detention (PD) presumptions are a reality for presumed-innocent people prosecuted in Virginia for alleged designated repeat drug felony charges, robbery, other violent crimes, and other felonies. This is an even more serious state of affairs in the federal prosecution system. Praised be the Virginia legislators who introduced and passed legislation to eliminate all presumptions against pretrial release / bond / bail for criminal defendants. Virginia governor Northam has until March 31, 2021, to act on this legislation, numbered SB 1266.

This Virginia pretrial detention statutory reform is part of the momentum reducing the dark ages aspects of the commonwealth’s criminal justice system

This Virginia pretrial detention legislation ending presumptions against pretrial release is part of the legislative momentum ever since Democrats took control of the state Senate and House of Delegates in 2020, bringing the state farther from its criminal law dark ages. Already-signed legislation on that path is the elimination of the death penalty, ending of the requirement to have a jury sentencing phase after a jury conviction for a felony and Class 1 misdemeanor case, barring marijuana odor by itself from justifying stops and seizures of people, and barring a host of minor vehicular infractions from justifying traffic stops (which are often used as pretexts for police fishing trips into criminal activity).

The new pretrial detention legislation will require specific reasons for denying pretrial release, where currently the judge can simply say that a presumption against PD has not been overcome

Once this new pretrial detention legislation takes effect, judges will have no good reason to rely on the superseded legislation presuming no pretrial release for certain crime. This new legislation continues the two-prong focus for deciding pretrial release of Virginia criminal defendants, which are the defendant’s risk of flight, and the risk that the defendant may cause harm to themselves or others.

How should a Virginia criminal defendant present the best possible arguments for pretrial release with the least onerous conditions?

A criminal defense lawyer needs to be ready to argue more to the judge than that a Virginia criminal defendant should be released from  pretrial detention because s/he is presumed innocent unless and until proven guilty beyond a reasonable doubt. The defense must strongly present why the defendant is not a flight risk and not a risk of harm to themselves nor others if released pretrial. Arguments supporting no flight risk include ties to the community, commitment to showing up in court by having hired a lawyer, conviction risks, sentencing range risks, and the greater harm to the defendant of a fugitive warrant and failure to appear conviction than simply appearing in court. Arguments supporting little to no risk of harm to the defendant’s selves nor others can look to such factors as presenting the alleged crime as an isolated incident or aberration, looking at the harm of the alleged crime on a scale of one to ten, and presenting a solidly relevant self improvement plan. A bond hearing can be strengthened by having one or two family members present at the hearing who will assure that they will see to it that the defendant timely appears at all court dates.

Overcoming the hurdles of the magistrate and scheduling a bond hearing

Even though the new  legislation eliminating presumptions against pretrial release is terrific, if signed by the governor, that provides no assurance that magistrates — who ordinarily first set pretrial release conditions — will change their approaches to pretrial detention. Of course, with the elimination of presumptions against pretrial release, magistrates will no longer need to feel the need to deny pretrial release to defendants with a statutory presumption against such release. Moreover, the new legislation does not change that judges will not always entertain a pretrial release hearing on the arraignment date for detainees, rather than requiring the bond hearing not to be less then one day later. If you know you have a pending Virginia warrant of arrest against you, you have the option to consult with a qualified criminal defense lawyer about the ideal approach to turning yourself in and how to avoid discussing the criminal allegations with the magistrate, and about how you might be assisted by having a lawyer accompany you when you turn yourself in. A qualified lawyer can also advise you about the possible benefits of having an attorney ready to appear at a bond hearing with you, and about seeking any favorable amendments to your original pretrial release order (also known as a recognizance in Virginia).

Fairfax criminal lawyer Jonathan Katz has repeatedly obtained favorable pretrial release conditions for people accused of Virginia DUI, misdemeanor and felony offenses. Your road to a great defense is one phone call away, at 703-383-1100 to schedule a free in-person consultation with Jon Katz about your court-pending case.