Under current Virginia Law, there exist “presumptions against bond.” These are laid out in the code, and specify that for certain charges, the Judge should presume (subject to being rebutted by other evidence) that a person will not follow the terms of any bond, and that therefore they should be incarcerated before their trial.
While one of the most well known aspects of American criminal law is that we are all “innocent until proven guilty,” the presumptions against bond suggest the exact opposite. Simply being charged with these crimes means you are already fighting an uphill battle to be free pending your trial.
These presumptions are found at Va. Code 19.2-104, and include certain allegations of Drug Manufacturing and Distribution offenses, Firearms offenses, Sexual Assault, Child Pornography, Violations of Protective Orders, Driving While Intoxicated, Domestic Violence, Strangulation, Prostitution, Gang Related Activity, and Illegal Immigration.
The simple allegation of these offenses currently means a Court should “presume” that you cannot be safely released pending your trial, and that you would not show up for your trial. This is despite that familiar presumption of innocence.
SB 1266, which has passed the Virginia Senate and is being considered in the House, would eliminate these presumptions. This would allow Judges to do what they are meant to: make individual judgments based on the specific facts, and the specific Defendant, in front of them. As of February 5, 2021, this is not law and has only passed the Virginia Senate.
This Bill, if passed, would make it easier for lawyers to argue that certain Defendants should not be incarcerated before they are even tried. There are many arguments a lawyer can make regarding bond for their clients, and if necessary, Bond determinations can be appealed, or sometimes reconsidered if circumstances change.