Virginia’s Criminal Justice Crossroads: Pretrial Issues in the Commonwealth
This is part of a series on crime and justice in Virginia. Read the other posts here: Pre-Arrest, Post-Conviction.
A frequently overlooked issue in criminal justice is how pretrial processes and inefficiencies within court systems can adversely impact the lives of those accused of a crime long before any verdict. While holding guilty parties is crucial, our justice system must avoid a one-size-fits-all approach for those merely accused.
Unfortunately, systemic issues in our legal process—including prolonged pretrial detention, severe penalties for failing to appear in court, and significant court backlogs—are problematic for defendants, communities, and victims, as well as public trust in the criminal justice system. The system’s ineffectual nature generates extended case delays, unnecessary incarceration, and increased costs for the state and its taxpayers.
These issues have come into focus in recent years in Virginia. Despite its status as a national leader in bail and pretrial release policy, the Commonwealth still has opportunities for improvement in addressing failures to appear (FTA), the overuse of cash bail, and delays in due process.
From Good to Great: Addressing Court Confusion and Failure to Appear
FTA occurs when a defendant misses a scheduled court hearing they were legally obligated to attend. Virginia’s FTA rate decreased from 16.6 percent in 2021 to 15.7 percent in 2022; however, it remains higher than its pre-pandemic rate of 12.6 percent in 2019. While these numbers are still better than those in many other jurisdictions, there is still room for improvement.
Often, individuals miss court because they forgot the hearing date, were unaware they had to appear, or lacked transportation. Missing court normally occurs inadvertently, not because the defendant is intentionally avoiding accountability. However, it still can cause profound ramifications, leading to additional charges as well as bench warrants for the defendant. This raises costs for state and local governments in Virginia, as arrest warrants require additional court personnel time, law enforcement resources to find and book the defendant, and the prospect of jail time. Research has demonstrated that this diverts resources from crime prevention and costs states tens of millions of dollars annually.
Thankfully, Virginia has instituted some positive practices to help mitigate FTA issues. These include court reminders; however, individuals must opt in to receive them. Because this system requires individuals to take extra steps (unlike an automatic enrollment system), it often results in lower enrollment. Additionally, Virginia considers intent when an individual misses court and allows for excused absences at the judge’s discretion, though it is less flexible than some other states.
The state has also adopted several bipartisan measures in recent years to reduce the burden on defendants facing FTA consequences. In 2020, Virginia eliminated the court’s ability to suspend drivers licenses merely for failing to appear. In 2024, the state abolished new FTA charges for individuals already in jail. While these are steps in the right direction, more work remains.
While FTA may seem like a distinct issue, it intrinsically connects to pretrial release and bail decisions. A missed court appearance can lead to the revocation of bail, rearrest, and jail time. Therefore, it’s critical to view FTA as an essential component of the criminal justice system.
Remaining a Leader: Pretrial Release Decisions in Virginia
Virginia has been a leader in pretrial release policies for over two decades. The Virginia Pretrial Risk Assessment Instrument (VPRAI), developed by the state’s Department of Criminal Justice Services, allows pretrial services to assess an individual’s risk level for FTA or rearrest while on release. It considers a variety of factors and requires an interview and pretrial investigations to gather information on the accused. The goal of the VPRAI is to “identify the least restrictive terms and conditions of bail to reasonably assure court appearance and community safety.” Its recommendations are non-binding and are considered alongside several other statutory factors. Leveraging this information, judges determine if the accused should remain in detention or be released on recognizance, supervised release with conditions, or secured or unsecured bond. Low-risk individuals must be released on recognizance or unsecured bond unless the judicial officer overrides it based on individualized findings of risk.
Although the program has been beneficial, interview requirements have limited its efficiency. The assessment often does not occur until the following day rather than immediately before the magistrate sets the initial bail. Research shows that defendants who are detained even for a brief duration can experience significant challenges, including an increased risk of job loss and long-term difficulties securing gainful employment. Detainment also has the perverse effect of increasing the likelihood that an individual will engage in new criminal activity, thereby undermining public safety.
Other easier-to-use risk assessments may be the answer. Getting this right is important, as approximately 13,000 individuals (and 46 percent of the jail population) are held at any given time without being convicted of any crime. Considering that it costs around $86 a day to house an inmate, more efficient use of a risk assessment tool could help save money for the state by keeping lower-risk individuals out of jail entirely. As one of the first states to adopt a pretrial risk assessment, Virginia is ahead of many others in appropriately determining whether the individual’s situation warrants release, detention, or bail. However, Virginia still uses cash bail for all offenses, including misdemeanors, and there are no situations in which secured bond is precluded. This means individuals who are unable to afford bail will be detained for a longer period because secured bond can be ordered even in situations where the defendant poses no flight risk. A lack of counsel at the initial bail setting and delayed court dockets can also lead to longer pretrial detention.
Confronting Delays of Due Process
While changes to Virginia’s bail presumption law have influenced how long someone must remain in custody before trial, the state’s speedy trial law isn’t always that expedient. Although it requires that detained individuals be tried within five months (nine if not incarcerated), this timeline is frequently extended in practice.
Several high-profile cases, though extreme, underscore this pervasive issue: One defendant in Virginia Beach was jailed for seven years before trial, another was detained for three years in Henrico, and a third was held for five years in Richmond.
Staffing shortages—including judges and court personnel—contribute to these delays, as do case backlogs exacerbated by the COVID-19 pandemic. The expansion of appeals, including the 2022 policy granting all criminal defendants the right to appeal before a three-judge panel of the Court of Appeals, has further increased workloads.
Court delays are costly. The United States spends an estimated $52 billion annually on court systems, excluding indirect costs like law enforcement appearances in court proceedings and time away from active duty. These structural inefficiencies undermine justice and waste public funds.
Closing Arguments: Why the System Needs an Upgrade
While Virginia has made commendable progress in pretrial justice, costly inefficiencies remain. Not only do prolonged detention, reliance on cash bail, and court delays harm the accused, but they also burden taxpayers with millions in avoidable expenses each year. A fairer, more efficient system would reduce unnecessary incarceration, improve public trust, and better serve both justice and the Commonwealth’s bottom line.