What's Next? Our 2018-19 Justice Reform "To Do" List

So Much to Do, So Little Time: What Should be Reformed in 2018-19?

to do list.png

Before we know it, the Virginia General Assembly’s 2019 session will be upon us. With criminal justice reform rising in the national consciousness, and a Virginia legislature that has shown a growing — and even bi-partisan — interest in fixing our justice system, now is no time to rest. In 2018, Virginia expanded criminal discovery and raised the larceny threshold, two measures that were long overdue — and were the focus of Justice Forward Virginia’s 2018 advocacy efforts. So what’s next? 

In 2019, Virginia will elect prosecutors throughout the state, and JFV is committed to being involved. But our legislative priorities are still taking shape, and along those lines, we’re soliciting your input. Which criminal laws do you believe most need to be changed? On which issues should Justice Forward and its partners focus advocacy efforts over the next year? Have ideas? Contact us, participate in our Facebook poll, and make plans to attend our Justice Reform Kickoff Party on October 29, 2018, in Fairfax, VA.

Some of the reforms we’re considering are listed below, followed by a more in-depth discussion of a number of them.

  1. Make Marijuana Legal, or “Less Illegal”

  2. Allow Poor Defendants the Tools Necessary to Prepare a Defense without Requiring Disclosure of Trial Strategy (Ex Parte Expert Requests)

  3. Eliminate Virginia’s Arcane “Habitual Drunkard” Law

  4. Establish Safeguards Against Unreliable Informant Testimony

  5. Prohibit the Odor of Marijuana as Grounds to Seize and Search

  6. Increase Funding for Indigent Defense

  7. End “Debtor’s Prison” Practices of Unreasonably Punishing Nonpayment of Court Costs and Fines

  8. Modify or Eliminate Jury Sentencing

  9. Reduce Mandatory Minimums

  10. Protect and Expand Criminal Discovery Rights

  11. Establish Lesser Degrees of Robbery

  12. Limit Overcharging in Fraud Cases

  13. Allow for Expungement of Certain Misdemeanor Convictions

  14. Bail Reform

pot leaf.jpg

While many states—including Virginia's neighbors—have migrated toward more sensible drug policy, Virginia remains steadfastly committed to the war on drugs. Marijuana is illegal for recreational purposes in Virginia, and although cannabidiol [CBD] was legalized for medical use, CBD oil has no intoxicating effects, and represents only a fraction of the marijuana consumed. Is now the time to push for full legalization of recreational marijuana? If legalization is not possible, should marijuana laws be made less punitive? For example, why is possession of some forms of marijuana still a felony? Possession of *any* quantity of hash oil—even residue—is a felony in Virginia. Hash oil is the substance used to make many edibles, such as candies and gummies. It is also popular to smoke. It is generally harmless, just like the plant material, and there’s little sense in punishing it so much more harshly. 

In addition, growing even one marijuana plant in Virginia can be charged as a felony. And possession with the intent to share or sell as little as a half-ounce of marijuana can be charged as felony drug dealing. These are all laws the legislature could consider revisiting, should it not have the votes for legalization.

Ex Parte Requests for Expert Funding

 Scientific advancements over the past several decades have led to dramatic changes in the way courts determine guilt or innocence—not to mention the way Hollywood depicts the business of criminal investigation and prosecution. Prosecutors like to refer to “The CSI Effect”: an expectation from jurors that criminal convictions should be backed by things like DNA, forensic computer analysis, cell-site location information, testimony from psychologists or medical doctors, and the like.

With an increased emphasis on evidence that is forensic, scientific or medical in nature, defendants must also increasingly rely on experts to help them at trial. Experts are expensive, though, and without help from the government, poor defendants would be unable to access the expert assistance they need to defend themselves in court. 

crime scene.jpg

This is where the problem lies. Because in order to receive money to hire experts, an indigent defendant must ask for funding in open court, and tell the court and prosecutor why they need it. Essentially this requires the defendant to tell the court how he is preparing for trial and which issues will be important to his defense, and in doing so, to broadcast defense strategy to the government. It’s akin to a football team stealing its opponent’s playbook.  

Changing the law to permit “ex parte” requests for expert funds could make a major difference in protecting defendants’ rights to prepare a defense confidentially.

Interdiction

In Virginia, sometimes “just being near alcohol can land you in jail.” 

Virginia retains on its books an arcane law called “interdiction,” which allows courts to label people “habitual drunkards,” often after they’ve committed alcohol-related crimes. The decision to declare someone a “habitual drunkard” happens at a civil hearing, where the person isn’t entitled to an attorney to help fight the allegations, and sometimes when the person isn’t even present. Once “interdicted” and branded a “habitual drunkard,” it’s a class one misdemeanor to purchase, consume or possess alcohol. That means that every instance of purchasing, possessing or being under the influence of alcohol can result in up to a year in jail.

The law almost exclusively affects persons who are homeless or have unstable or marginal housing. Alcoholics who aren’t homeless are almost never interdicted. The majority of the people affected are minorities, and of course almost all of them are very poor. Although many interdicted persons suffer from alcoholism, nothing about the statutory scheme promotes or is geared toward alcohol treatment—the law is strictly punitive. It’s simply an “anti-vagrancy” measure; a way to sweep “undesirables” off of the street and into jail cells. 

As the Legal Aid Justice Center puts it, “[interdiction] just seems really ancient. Alcohol is legal for all of us, except for these people who have been deemed undesirable by the district attorneys.” Unjust laws shouldn’t persist simply because the persons affected have no one to advocate for them. Now is the time to remove interdiction from the Virginia Code.

Safeguards Against Unreliable Informant Testimony

“[T]he use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.” On Lee v. United States, 343 U.S. 747, 757 (1952). Testimony by informants and other witnesses who testify for benefit—colloquially known as “snitches”—is by far the most common source of false criminal convictions in the United States; a fact that exposes a deep structural flaw in the criminal justice system, easily exploited by those acting on self-interest, one for which due process has yet to find a reliable countermeasure. The Innocence Project has reported that in 15% of all wrongful convictions overturned by DNA testing, an informant or similar witness testified at trial. Seehttp://www.themip.org/index.php /snitch-testimony. A comprehensive historical study of 350 erroneous convictions concluded that one-third of them were due to “perjury by prosecution witnesses”—twice as many as the next leading source, erroneous eyewitness identification. 

Informant testimony is likewise the most common source of false convictions in Virginia. Consider the case of Michael Hash:

Jailhouse informant.png

“The case of Michael Hash illustrates another way jailhouse snitch testimony can be used for impure ends: in Hash’s case, law enforcement allegedly used a known jailhouse snitch as a de facto police agent in order to attain a conviction. Hash was just 15 when his 74-year-old mail carrier Thelma Scroggins was shot to death in 1996. A new sheriff reopened the cold case four years later and the then 19-year-old Hash found himself charged with murder, despite limited evidence. While incarcerated pre-trial, Hash was moved from the local jail in Culpeper, Virginia to Albemarle Charlottesville Regional Jail specifically to be housed with noted jailhouse snitch Paul Carter. Carter, who was being housed on federal drug charges, has testified roughly 20 times – so it was little surprise that he would later testify against Hash. At trial, Carter said prosecutors had not promised him any lenience for his testimony – yet he was released shortly after the Hash trial. Last year, Michael Hash was released from prison after 12 years when his conviction was overturned . . . [and] has since filed a federal civil lawsuit . . . .

The lawsuit maintains that Paul Carter “made himself available to anybody and everybody in the enforcement community when he felt he had some information that was helpful.” While he was awaiting sentence himself, Carter allegedly told his lawyer “I’m not still involve[d] with this crime life. I just find things out to cut my time down.” Hash’s attorneys say law enforcement officials met with Carter beforehand to brief him on the case against Hash before setting the two up to meet in jail.”

B. Lavietes,“Deal or no deal? The struggle with jailhouse snitches” (July 14, 2014).

 The reason false informant testimony remains so pervasive is because of the reticence of courts to implement available, effective measures to prevent it. Instead, courts continue to rely on traditional safeguards that are almost entirely ineffectual, particularly in high-stakes, high-profile cases involving experienced informants. Primarily, those safeguards consist of the defendant’s right of confrontation and the government’s obligation to adduce only truthful, reliable testimony. Neither of these safeguards achieve their intended objectives, however, highlighting the need for other appropriate, available relief. 

What can be done by the legislature? First, the legislature could require informant testimony to be corroborated by other evidence in order to be admissible at trial. Second, it could mandate that in all cases where the prosecutor intends to elicit informant testimony, the court must conduct a “reliability hearing” to assess whether the informant is telling the truth. And third, it could require that juries be instructed as to the significant problems with the reliability of informants.

Prohibiting the Odor of Marijuana as Grounds to Seize and Search

One of the main reasons marijuana prohibition is so unjust is the manner in which it allows police to infringe on civil liberties, namely the right to be free from unlawful searches and seizures. As it stands, the mere odor of marijuana provides police officers in Virginia probable cause to stop an individual, search him, search his car, or even search his house. Moreover, when a police officer claims to have stopped and searched someone based on the odor of marijuana, that stop and search are nearly immune from judicial review -- once a smell has dissipated, it’s gone. There’s no way for lawyers or judges to return to the scene of a search which was based on the odor of marijuana and determine if the officer was telling the truth, and if he was, whether he was able to narrow down the source of the smell to the person searched. Combined with the growing popularity of the drug, the smell of marijuana has given police officers broad authority to stop and search individuals, authority that is often abused or exercised unevenly

The statistics don’t lie -- even though white people and people of color use marijuana at the same rates, black and Hispanic people in particular are far more likely to be stopped, searched and arrested for marijuana possession. Until there are limits placed on the use of the odor of marijuana in developing probable cause, the racial and economic inequities will persist.

Increased Funding for Indigent Defense

public defender sign.png

It is no secret that public defenders and other indigent defense counsel are overworked and underfunded. Despite reform efforts in the past two decades, Virginia’s indigent defense system remains deeply flawed and fails to provide indigent defendants the guarantees of effective assistance of counsel required by federal and state law. Public defenders carry the majority of the load in representing Virginia's indigent accused, and they typically earn considerably less than prosecutors in the same jurisdictions. Further, Virginia's rates of reimbursement for private court-appointed counsel are low, and fees are “capped.” For example, if a private court-appointed attorney is assigned to represent an indigent client in a burglary case—punishable by 20 years in prison—that attorney is entitled to a maximum of $445.00, whether the representation required 2 hours or 200 hours. Although the legislature has made funds available for “waivers” of the fee caps, those waivers are themselves subject to caps set by the Supreme Court of Virginia; caps that are firm and cannot be exceeded, regardless of the work entailed by a given case. And frequently, the waiver funds are expended prior to the end of the fiscal year, and by statute are not replenished, meaning that at some point, waiver funds simply aren't available at all. Funding for court-appointed attorneys on appeal might be the worst of all; it’s not unheard of for an attorney who has spent over 100 hours on an appeal to be paid $600 or less for his or her efforts—not even minimum wage.

As a matter of practice, Virginia court appointed attorneys know when they're appointed to serious felony matters, their work is very likely to go uncompensated. As one might expect, low public defender salaries and arbitrarily capped fees take their toll on the cohort willing to represent indigent defendants. Although indigent defense attracts some of the very best lawyers in Virginia, it also attracts some of the very worst, and the result is inadequate representation, and a failure to safeguard the constitutional rights of many poor defendants.

The legislature should increase funding for public defenders and other indigent defense attorneys.

Debtor’s Prison: Court Costs, Fines, and Suspended Licenses

A hot topic throughout the country, Virginia is among the worst offenders when it comes to piling court costs and fines on defendants, then punishing them for nonpayment. Nonpayment results in license suspensions, which affect employability, the ability to retain a job, and the likelihood of rearrest and incarceration both for nonpayment itself, as well new charges for driving on a suspended license. The result is that the effects of criminal convictions are compounded, years into the future, creating a form of modern day “debtor’s prison.” The legislature should act to reduce the harmful effects of this counterproductive financial enforcement scheme.

Jury Sentencing

Virginia is one of just a few states where juries, lacking any of the information judges need to render fair sentences, not only determine guilt or innocence, but also determine punishment. Jury sentencing is a relic that leads to wildly disparate outcomes for similarly situated defendants. The legislature should consider proposals to eliminate jury sentencing, or implement safeguards to increase uniformity and predictability of jury sentences.

Mandatory Minimums

As in many states, the past few decades of tough-on-crime politics has resulted in mandatory minimums for all manner of offenses, from assault on a law enforcement officer (even a push with no injury results in a mandatory minimum 6 months in jail), to drug dealing (a third conviction for dealing cocaine entails a mandatory minimum 10 years imprisonment) to sex crimes (a wide variety of sex crimes against children now carry mandatory life in prison, without the possibility of parole). Mandatory minimums “are cruel and ineffective.” Mandatory minimums don’t make communities safer. All they do is take discretion out of the hands of judges and juries, and give it to prosecutors, resulting in immense leverage to coerce guilty pleas, including from persons with legitimate claims of innocence. As to those who are in fact guilty, mandatory minimums uniformly result in harsher punishment, lengthier sentences, and mandated prison terms for persons who have the strongest claims for leniency. Although politically unpopular, solving the problem of mass incarceration in Virginia will undoubtedly require addressing the overabundance of mandatory minimums.

Create Different Degrees of Robbery

In Virginia, all robberies are punishable by 5 years to life in prison. This is true no matter how serious or minor the allegations: whether it involved an armed robbery that truly endangered the victims’ lives, or a simple act of bullying, such as where one teenager threatens to beat up another if he doesn’t give him his shoes. The former example is rightfully considered one of the most serious offenses an individual can commit. The latter arguably shouldn’t even be dealt with by criminal courts.

Why the one-size-fits-all approach to a crime that spans such a wide range of behavior? It may owe in part to the appellate courts, which have expanded the definition of robbery over time to encompass more and more acts. Combine that with the legislature’s failure to account for the evolving definition of the crime, and you end up with a punishment scheme that is grossly disproportionate to many of the robberies that are committed.

The potential for unjust outcomes as a result of this one-size-fits-all approach cannot be overstated. First, if a person charged with robbery proceeds to a jury trial and is convicted, jury sentencing laws require the jurors to impose the minimum 5 years in prison, whether they want to or not, and even in circumstances where a judge might not incarcerate the defendant at all. Although a judge can later suspend that jury recommendation, there’s a prevailing belief among most judges that jury sentences should not be disturbed. Second, arguably the most common type of “robbery” that occurs is bullying. Although many schools, police and prosecutors sometimes use their discretion to forgo robbery charges against young people accused of bullying, many don’t. And when they don’t, a young person is suddenly faced with a host of severe consequences: a felony conviction, a felony record for life, and a lengthy prison sentence, just to name a few.

As many other states have, Virginia should establish degrees of robbery that reflect the seriousness of the crime committed.

Bail Reform

The current cash-based bail system—where defendants must pay money to the court or a bail bondsman in order to be released pending trial—is deeply flawed. Money bail prevents many indigent defendants, and almost exclusively indigent defendants, from leaving jail while their cases are pending. Nationwide, 34% of defendants are kept in jail pretrial solely because they are unable to pay a cash bond, and most of these people are among the poorest third of Americans. When pretrial detention depends on whether someone can afford to pay a cash bond, two otherwise similar pretrial defendants will face vastly different outcomes based merely on their wealth: those who can pay almost always do, and those who can’t never do.

Those who can’t post bond are left to face a host of negative consequences resulting from pretrial detention, including: loss of employment or ability to seek employment; interference with education; housing instability; effects on child custody; an impaired ability to prepare an effective defense; and increased risk of recidivism. Together, these consequences tend to deepen already-existing racial and economic disparities.

Although it has received quite a bit of press recently, in reality, bail reform is one of the less-controversial justice reform initiatives—it is simply an effort to improve pretrial outcomes by substituting evidence-based practices (namely risk-based assessments and pretrial services) for cash bail. Besides for exacerbating the negative effects of pretrial detention, cash bail does not advance its intended purposes: ensuring defendants appear for trial and do not reoffend while awaiting trial. Studies have demonstrated that a better model exists, which relies on risk assessments combined with pretrial supervision, where warranted.

Understanding what bail reform consists of, it becomes clear that Virginia was engaged in bail reform “before bail reform was cool.” Virginia has long-sought to implement evidence-based practices in the pretrial context: over a decade ago, it developed a pretrial risk-assessment tool—the Virginia Pretrial Risk Assessment Instrument (VPRAI)—which follows a model similar to that which has been proposed in states and jurisdictions that are only now considering bail reform. The VPRAI tool has since been validated, and supplemented by the Praxis, which is used in conjunction with the VPRAI to make recommendations about whether to release a defendant before trial, and if so, on what conditions. Pretrial officers throughout the Commonwealth have been trained to use the VPRAI, and courts that use it as intended have significantly reduced the number of defendants held pretrial.

Although worthy of consideration, the General Assembly need not eliminate cash bail in order to further the underlying goals of bail reform. Along these lines, the legislature should consider the following:

  • Mandate an “ability-to-pay” determination, which would assess the ability of a defendant to pay a cash bond, allowing the court to adjust or eliminate bond based on the defendant’s means.

  • Mandate preparation and consideration of the Virginia Pretrial Risk Assessment Instrument by local courts, to include a presumption that the recommendation of the VPRAI/Praxis be followed unless rebutted by the Commonwealth.

  • Consider regulating or prohibiting compensated securities (i.e. bail bondsmen), instead allowing cash bonds to be paid through the clerk of court.

We Need Your Help!

More than almost any other issue, reforming the criminal justice system depends on the participation, input and passion of the few advocates who care about it the most. We absolutely need your input as well as your support if we hope to make a difference. Please consider weighing in on our 2018-19 advocacy priorities by contacting us, participating in our Facebook poll, attending our Justice Reform Kickoff Party, or making a contribution. We look forward to partnering with you.

Brad Haywood