2023 Priorities
Protect Criminal Justice Reform Progress
If we learned anything from the 2022 session, it’s that a slim Democratic majority in the Senate is all that stands in the way of reversing the progress Virginia made on criminal justice reform since 2020. Although we made tremendous strides, we have so much more work to do. But we cannot achieve progress when some legislators want to return to the regressive policies of the past. And so, during this short, election-year session, we will play defense.
1) Pretextual Policing Prohibitions: Say NO to HB 1380, HB 1445, HB 1703, HB 2384, SB 875, SB 1010 Traffic stops are the most common reason people have contact with the police. But not all traffic stops are created equal. When white people experience anxiety during a traffic stop, they’re afraid that they might get a ticket. For Black people, a traffic stop is a life-threatening experience. Jayland Walker, Samuel DuBose, and Philando Castile are just a few of the many Black Americans who have been killed by police officers after being stopped by police. Countless others are stopped without such tragic results, but their lives are impacted, nonetheless. They are needlessly placed in fear. Many are pulled over, questioned, or have their car searched multiple times each month for conduct that would go unnoticed for non-Black drivers. A recent study confirmed police pull over Black and Hispanic drivers at disproportionate rates in Virginia. The surest way to reduce the ability of police officers to use violence against Black people is to reduce the ability of police officers to interject themselves into the lives of Black people.
In the 2020 Special Session, Justice Forward Virginia helped reduce pretextual policing through legislation that eliminated the authority of police officers to stop drivers for bogus reasons like a tree air freshener dangling from a rearview mirror or an expired registration tag. Nevertheless, opponents of reform have already introduced at least four bills to repeal most of the progress we made on pretextual policing in 2020, as well as provide authority for officers to search drivers and vehicles based on the odor of marijuana, a legal substance in Virginia.
2) Probation Reform: Say NO to HB 2013. Most have heard of mass incarceration, but many 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 an appointment or missing a drug test can result in a judge imposing years of 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. In 2021, Justice Forward Virginia supported sensible probation reform that limits probation terms to five years and limits the amount of jail or prison time that can be imposed for violations, especially “technical” violations of the conditions of probation. Under the new law, unless a judge decides jail time is necessary for a court-ordered drug, alcohol, or mental health evaluation, a person on probation who commits a technical violation cannot be incarcerated on their first offense. For a second technical violation, the person can only be incarcerated for up to 14 days.
Opponents have introduced a bill that would eviscerate probation reform by giving courts far more authority to imprison people for much longer when a person commits a technical violation. Many Virginia judges and prosecutors are hammers, and to them, people who commit technical violations look like nails. Sensible probation reform has taken away the ability of judges and prosecutors to hammer defendants in circumstances where it would be unjust or counterproductive. Research has shown our system can be smarter and more fair without compromising community safety. Despite the evidence, some want to take us back to the way things were as quickly as possible. We can’t let that happen.
Before probation was reformed in the Commonwealth:
There were about 30,000 people in prison in Virginia; there were almost 60,000 people on supervised probation, over 3/4ths on probation for non-violent offenses.
People placed on probation had their lives micro-managed by probation officers—for years on end; 5 years, 10 years, sometimes even indefinitely.
About half of all incarcerated people in Virginia were serving time for probation violations, and far too many of them were incarcerated simply because they didn’t follow those “technical” rules of probation to the letter.
Virginia was one of only five states that didn’t limit the amount of time that can be imposed for violations of probation.
3) Ending Presumptions Against Bail: Say NO to HB 1365, SB 877, and SB 1229. Everyone charged with a crime is presumed innocent under the Constitution, and ought to be free while awaiting trial unless they pose a risk of flight or a danger to the community. Simple enough, right? Not exactly. Until 2021, Virginia presumed the guilt of anyone charged with a long list of offenses, in essence mandating incarceration before trial on those offenses unless the person could prove their own innocence. Unlike in almost any other state, where a judge could hold them if there was evidence of risk of flight or a danger to the community, in Virginia these defendants were presumed to be dangerous based on the allegations alone, no matter how minor, and no matter how weak the evidence. Presumptions against bail served no real purpose other than to hold people in jail who did not need to be there before trial. Along with other members of the Virginia Pretrial Justice Coalition, Justice Forward Virginia supported legislation that restored the presumption of innocence for people accused of crimes by eliminating presumptions against bail.
In the very first bill filed for the 2023 session, reform opponents signaled they want to return to how things were by re-inserting presumptions against bail into the Virginia code. A second bill would prohibit magistrates from setting any bail for people accused of acts of violence, unless a prosecutor consents.
4) Mental Health Evidence at Trial: Say NO to SB 858. Until 2021, Virginia law prohibited a defendant from presenting evidence of mental illness or ID/DD unless they pled not guilty by reason of insanity, even if that evidence was strongly probative of guilt or culpability. Insanity defenses are exceptionally rare due to how difficult they are to prove. Moreover, if a person pleads not guilty by reason of insanity and wins, they subject themselves to a potentially indefinite commitment to a mental hospital. As a result, before the change, juries almost never heard about a person’s mental illness—even when it almost perfectly explains their conduct.
In 2021, Virginia adopted a policy first codified 60 years ago in the Model Penal Code, and recommended by the ABA, passing legislation that allows defendants to introduce evidence of mental illness to show they did not intend to commit the crimes with which they were charged. The repeal bill would eliminate this law less than 18 months after it truly took effect, despite ample evidence it is being interpreted and applied appropriately.
The 2023 General Assembly session starts Wednesday, January 11th. As the session progresses, more bills, good and bad, will appear in House and Senate committees. Please check back for updates on additional legislation and a PDF version of our legislative priorities.