2021 Priorities
In the 2020 special session, the General Assembly focused almost exclusively on police reform, passing only two bills that affect Virginia’s criminal legal system from “bail to jail.” Where does that leave our criminal courts now? Still stuck in the stone ages, unfortunately, well-short of the type of contemporary, humane, evidence informed approach to criminal justice that the Commonwealth deserves. So let’s do something about it!
The reforms we seek are not controversial. They aim to address basic unfairness and absurd results that are a product of current laws and procedures that just don’t make sense.
Passed Priority Legislation - On its Way to the Governor’s Desk
1) Allow reconsideration of sentences after a defendant has been transported to the Department of Corrections: HB 1920 (Price) This is currently one of the most arbitrary rules in the Virginia Code. Defendants can request reconsideration of sentence as long as they are in a local jail. The moment they are transported to the Department of Corrections, they can no longer request reconsideration. There appears to be no rhyme or reason to when someone is transported to DOC. This even affects sentences where a reconsideration motion is pending before the court. The current rule should be replaced by a consistent deadline, regardless of who has custody of the inmate. This one’s heading to the governor’s desk!
2) Repeal petit larceny 3rd statute: HB 2290 (Plum) Although the General Assembly raised the larceny threshold to $1000, the Code still permits people charged for a third time to face up to 5 years in prison. The large majority of people charged under this statute are homeless or mentally ill. No matter when they committed the first or second offense, the third time they allegedly steal something as insignificant as a bar of soap, they face 5 years in the penitentiary. This one’s heading to the governor’s desk!
3) Create “degrees” of robbery: HB 1936 (Watts) Despite covering conduct that is often minor in nature, Virginia has only one punishment for robbery: 5 years to life in prison. This bill would remove the “5 to life” range, and replace it with degrees of robbery, based on the seriousness of the offense. This one’s heading to the governor’s desk!
4) Pretrial Reform - Data collection: HB 2110 (Herring) and SB 1391 (Lucas) Virginia lacks a unified data collection system regarding pretrial decisions and outcomes, and should require that all criminal justice organizations in the state collect and share data on the pretrial process, such as length of pretrial detention, demographic data, and what happens when certain conditions of bail are set. This data will enable us to make more informed decisions about how to minimize unnecessary, costly pretrial detention, while promoting community safety and the meaningful, timely disposition of criminal cases. It will allow for examinations of demographics to shed light on issues of race, ethnicity, gender, and age disparities and can promote practices which move the Commonwealth towards a more just criminal legal system. This one’s heading to the governor’s desk!
5) Probation reform: HB 2038 (Scott) Many have heard of mass incarceration, but most have not heard of mass supervision—the state of affairs created by indefinite terms of community and court supervision in the form of probation and parole. On probation, something as minor as oversleeping and missing a drug test can result in the imposition of years of back-up prison time. It also keeps perfectly law abiding citizens tethered to the court system and unable to move forward with their lives, well after they paid their debt to society. Sensible probation reform would limit probation terms and would the amount of time that can be imposed for probation violations (especially “technical” violations of the conditions of probation). This one’s heading to the governor’s desk!
6) Ending presumptions against bail: SB 1266 (Deeds) As it stands, although the Constitution requires a presumption of innocence, and requires bond unless a person is determined to be a risk of flight or a danger to the community, the Virginia Code flips the script—where certain offenses have been charged, Defendants must prove why they are not a danger to the community or a risk of flight if released before trial. Although those presumption offenses, like robbery or malicious wounding, sound extremely violent, they often aren’t, because of how broadly Virginia Courts have interpreted the conduct that may satisfy those statutes. Presumptions serve no real purpose other than to hold in jail people who do not need to be there before trial. This one’s heading to the governor’s desk!
7) Automatic Expungement: HB 2113 (Herring), SB 1339 (Surovell) Virginia currently ensures that no one convicted of a crime can ever have that offense removed from their record. Virginia is one of only seven states that does not allow expungement of prior convictions under certain circumstances. Reform should allow individuals convicted of misdemeanors and some types of felonies to petition to have their records expunged after a period of years if certain conditions are met.
Virginia also does not allow for the expungement of certain offenses from your record, even if you were not convicted of that offense. If you successfully complete a court-supervised first offender program, for instance, Virginia does not allow you to erase your arrest and charge from your record. Reform should allow expungement for any offense that did not result in a conviction.
Finally, charges and acquittals are not expunged from a person’s record unless they petition the court to do so. This often requires the petitioner to hire a lawyer to make sure the petition is prepared properly. We have come to understand that criminal records are not race-neutral. They are the product of a system that targets Black people and poor communities. The permanence of criminal records in Virginia is a racial justice issue that needs to be addressed, and reform will not succeed if we do not ensure access to justice. Meaningful legislation will allow for the automatic expungement of charges and acquittals and of certain misdemeanor and felony convictions. Reform should also create a framework for expansion of automatic expungement in the future. This one’s heading to the governor’s desk!
8) Allow evidence of mental illness in non-insanity cases: HB 2047 (Bourne) and SB 1383 (Favola)/ SB 1315 (McClellan) Right now Virginia follows a needlessly rigid rule barring any evidence of a defendant’s mental illness unless he pleads not guilty by reason of insanity, even if the mental illness would better explain his conduct and help the jury render an accurate verdict. We propose that Virginia follow the recommendations of the Model Penal Code and American Bar Association and permit defendants to introduce evidence of mental illness to negate subjective mental states in non-insanity cases. This one’s on it’s way to the governor’s desk!
Priority Legislation that has been Defeated this Session
1) De-felonize drug possession: HB 2303 (Hudson) Possession of most narcotics is a felony offense in Virginia. That means prison time, loss of civil liberties, and this day and age, loss of one’s vitality and ability to earn an income. Does that make any sense whatsoever? Substance use disorder is a disease and public health problem, not a crime. At the very least, we should not be authorizing ten year prison sentences for drug possession. Possession should be a misdemeanor. It should come as no surprise that this will also result in a massive cost savings. One of the most recent states to de-felonize drug possession was Oklahoma. In the year after the measure passed, 14,000 fewer felonies were charged by OK prosecutors, with the commensurate reduction in costs of policing and prison beds.
This bill was left in committee, so it is no longer being considered.
Study decriminalization: HJ 530 (Hudson) We are also asking for the General Assembly to direct the state crime commission to study decriminalization. Oregon’s measure 110 decriminalized all drugs in an innovative way, where a portion of the tax revenue from legal marijuana will be used to fund drug treatment services outside of the carceral system.
On 1/22/20 The Subcommittee recommended laying on the table (Yeas- 5: Sickles, Carr, Simon, Austin, Kilgore and Nos-0).This bill never got a vote, but the crime commission can choose to study drug decriminalization, so we will wait to see what they decide.
2) Bar prosecution of drug “residue” cases: HB 2303 (Hudson) Drug “residue” is not itself a substance that can be used or abused. At most it is trace chemical evidence that an item has been in contact with drugs and that a person used drugs in the past. Yet it can still be prosecuted as a felony punishable by up to 10 years in prison. This would not prevent prosecution for possession of drug paraphernalia, which in most residue cases is the right charge.
This bill was left in committee, so it is no longer being considered.
3) Pay parity for public defenders: Public defenders often have larger workloads, fewer resources, and are paid substantially less than their counterparts on the prosecution side. This bill would make their pay compatible to what prosecutors make, helping public defenders to remain in the profession.
This bill lost the patron and was never introduced. We will try again next year.
4) Counsel at first appearance: HB 2286 (Williams Graves)In many if not most jurisdictions in Virginia, persons who are arrested never receive a judicial determination of bond until two days after their arrest. That is because as currently written, the Code does not mandate the presence of counsel at a defendant’s “first appearance,” often referred to as an arraignment or advisement hearing. Jurisdictions where judges permit or mandate counsel at first appearance have significantly shorter periods of unnecessary pretrial detention. Social science has demonstrated that pretrial detention of even 2 or 3 days can have significant effects on one’s livelihood, including loss of employment, public benefits, child custody/visitation, and housing. Moving up a judicial bond determination by even one day could dramatically improve the pretrial outcomes and reduce recidivism.
On 1/27/21, the bill reported out of the Courts of Justice Committee (14-Y 8-N) and was referred to Appropriations.
Unfortunately this bill was killed in Appropriations on 1/29/21. The financial impact statement was poorly done (and made the change look very expensive) and the committee stated that while they feel it is an important change they had no idea of knowing the actual cost of implementing it. They hope that a more accurate financial impact statement will be done before next year.
5) Repeal of mandatory minimums: SB 1443 (Edwards) Virginia should take the bold step of repealing all mandatory minimums in the Virginia Code. Mandatory minimums don't work. They don't reduce crime rates, they don't reduce recidivism rates, they don't make the court process more efficient, they aren't better for victims, and they don't even manage to hold people accountable for the crimes they actually committed. All they do is coerce defendants to plead guilty—including those who are innocent—and prevent judges from being fair in circumstances when fairness is warranted
This bill passed the Senate (21-Y 17-N) on 2/5/21. The language in this bill removes all mandatory minimums except for those on Class I felonies, so it is much preferred over the language that was passed in the House.
On 2/24/21 the House passed a substitute bill.
Since different bills passed the House and Senate, this bill is in conference. As of 2/25/21, the conferees haven’t been announced.
This bill died in conference. It never even got a vote.
Other Bills to Watch:
Passed Legislation:
Abolition of the death penalty: HB 2263 (Mullin) and SB 1165 (Surovell)
Fines and costs; accrual of interest; deferral or installment payment agreements: HB 1895 (Hudson)
Habitual offenders; repeal: SB 1122 (Stanley)
Marijuana; legalization of simple possession, etc: HB 2312 (Herring) and SB 1406 (Ebbin)
The conference report passed both the House and the Senate. Unfortunately, there were several compromises made in conference that could be problematic and lead to racially biased policing. Additionally, there are reenactment clauses on many sections of the bill, and it doesn’t go into effect until 2024.
Parole; notice and certification; monthly reports; discretionary early consideration: HB 2167 (Scott)
Failed Legislation: