Criminal Justice Reform Summary

By Dick Hall-Sizemore

Now that I have some time and before it slips completely out of our minds, this is a good opportunity to review the final criminal justice reforms enacted by the recently-concluded special session of the General Assembly. (For those of you for whom the special session has slipped mercifully from your consciousness and you do not want to be reminded of it, feel free to skip this post.)

I have updated the scorecard I previously created and you can find it here to peruse at your leisure. As a reminder, I compiled this list of proposals and issues from the agendas announced during the summer by the Virginia Legislative Black Caucus and the Senate Democratic caucus, along with a few other major items that surfaced in the session. The items that did not pass, or for which legislation was not introduced, are shown in red.

Several major items that passed, such as citizen review boards, MARCUS alert system, and expanded sentence credits need fairly extensive discussion and so I will save those for later posts. This one will probably be long enough as it is. For this post, I will highlight four major bills or issues that passed, as well as some bills that did not pass, and discuss the role of the Senate in toning down House actions.

One major piece of legislation that deserves highlighting is Sen. Joe Morrissey’s bill to eliminate jury sentencing in Virginia (SB 5007). Its passage at the last minute was a surprise. In my last report on this bill, I assumed that it was dead. But, Morrissey pulled it out, apparently with some hardball tactics, and it will become effective July 1, 2021. Many in the criminal justice field consider this bill the most significant change in the criminal justice system in Virginia in many years. A more detailed description of the bill and the implications of its passage can be found in an earlier post.

Another major enacted bill is one that probably enjoyed unanimous support on this blog (a rarity)—getting rid of “bad apples” in law enforcement. Provisions of HB 5051 and SB 5030 expand the grounds for decertification to include serious misconduct as defined by statewide professional standards. The bills go even further to require sheriffs and police chiefs to request the records of applicants who have worked for other departments.

Another major enacted bill that needs highlighting is HB 5099 (and SB 5030) which expressly prohibits the use of no-knock search warrants. Furthermore, the bills require that search warrants be executed during the day, unless authorized for a later time by a judge, for good cause shown.

The last major area in this category is “pretext” traffic stops, which Blacks report they have been unfairly subjected to. HB 5058 prohibits law-enforcement officers from stopping motor vehicles due to a violation of any of various laws related to required or prohibited equipment. It would also prohibit the search of a motor vehicle solely on the basis of the officer detecting the odor of marijuana.

I am skeptical that this legislation will have the results intended by its proponents. Any law-enforcement officer who wants to intimidate or harass a citizen for any reason can always find a pretext to do so. For example she could stop a car for exceeding the speed limit by one mile per hour or for allegedly failing to come to a complete halt at a stop sign. The perverse result could be that the person stopped may wind up being charged with a more serious offense than having a taillight missing. However, several new provisions of SB 5030 could be effective in discouraging officers from making “pretext” stops. Those provisions require police chiefs and sheriffs to post data on all “investigatory motor vehicle stops” on websites maintained by their departments and to submit that data to the State Police.

The issues that caused the most uproar on this blog were either killed or significantly watered down:

  • Defunding the police—The police were not defunded. In fact, there was no serious effort to do down that road. Quite the contrary, the legislature appropriated an additional $7.5 million for state aid to localities with police departments (599 funding).
  • Qualified immunity—Legislation to abolish qualified immunity for law enforcement (HB 5013) passed the House (barely), but died in the Senate.
  • Parole—Legislation to reinstate parole (SB 5016) got nowhere.
  • Assault of law-enforcement officers—The bill to reduce the penalty for assaulting a law-enforcement (SB 5032) passed the Senate, but died in the House.
  • Earned sentence credits—Legislation to expand earned sentence credits (HB 5148 and SB 5034) ultimately passed, but only after being extensively amended to exclude violent offenders and to set up a graduated scale based on the offender’s behavior and progress in completing programs.

The House tended to pass bills with mandates or absolutes, accompanied in many cases with criminal penalties. On the other hand, the Senate tempered the House bills, eliminating mandates, absolutes, and criminal penalties. The Senate versions of the bills were ultimately enacted in each of the following areas:

  • Citizen review boards—Counties and cities are authorized to establish review boards (HB 5055 and SB 5035). The House would have required their establishment.
  • Use of force—Bills prohibiting or requiring the following actions were passed. In each case, the original House bill would have made the prohibition or requirement absolute and subjected violators to a criminal penalty. In each case, the final bill, as amended by the Senate and accepted by the House, made the prohibition subject to certain exceptions, such as “unless immediately necessary to protect the law-enforcement officer or other person from death or serious body injury.” Anyone violating any of the provisions would be subject to administrative disciplinary action, including decertification, rather than a criminal penalty:
    • Excessive use of force (SB 5030)
    • Choke holds (HB 5069 and SB 5030)
    • De-escalation before use of force (SB 5030)
    • Giving warning before use of deadly force (SB 5030)
    • Intervention by officer witnessing excessive use of force by fellow officer (HB 5029; SB 5030)
    • Shooting into or at moving vehicles (SB 5030)
    • Use of tear gas and other non-lethal weapons (HB 5049; SB 5030) Tear gas usage restriction dropped from final bill.

My Soapbox

The final actions are reasonable, for the most part, and some may improve the criminal justice system in the Commonwealth, or, at least, the perception of it. As for the actions concerning the use of force by police, it could be argued that the final actions really constitute a list of best practices that all law-enforcement agencies could be, and should be, following now without the legislation.

The special session dragged on for longer than was necessary.  However, it did produce some meaningful changes for the criminal justice system in the Commonwealth. Nevertheless, the legislators decided to put off action, until the 2021 regular session, action on some of the really meaty, controversial actions, such as reinstatement of parole and reform of the cash bail system. However, the recent Republican pledge to oppose any extension of the regular session beyond 30 days may put a crimp in those plans.

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26 responses to “Criminal Justice Reform Summary

  1. What is the rationale for elimination of jury sentencing?
    I think I would rather face a jury.
    Also, the unmentioned elephant in the room is the Commonwealth’s Attorney. It would be nice to have ones seeking to do justice equally and not needing to posture to rise politically…

    • Virginia juries generally hand out harsher sentences than do judges. If you choose a jury trial and the jury finds you guilty, you are in real trouble. Technically, juries only recommend a sentence. Judges can set a lower sentence than the jury recommended, but that does not happen very often.

      There are several justifications for not having the jury involved in the determination of sentence. Primarily, judges have access to the voluntary sentencing guidelines, which help reduce sentencing disparity around the state. By law, juries cannot be told the recommendation under the guidelines. Judges also have more flexibility than juries. They can suspend part of a sentence; they can order sentences for multiple charges to run concurrently, rather than consecutively. Juries do not have that flexibility.

      The proponents of the bill claim that prosecutors have the upper hand in negotiating plea deals because they can always threaten to request a jury trial. They call this the “jury penalty” for exercising one’s constitutional right.

      Although this is a significant move for the Virginia criminal justice system, in a larger perspective, it is not a radical idea. Forty-four states and the federal government do not use jury sentencing; Virginia is one of only six states that do.

      • Thanks for the explanation. I think there is a breakdown in two areas here. First, the Commonwealth’s Attorney. I know the plea bargain overcharging thing is real. This happens on all levels. It is why the Feds bat nearly 100%. It is totally unfair, and I am no bleeding heart liberal.
        Second, judicial discretion. I know Judges don’t like to override a jury, but aren’t they supposed to care about justice? When a travesty occurs, aren’t they supposed to be impartial reason? (But shouldn’t the CA have not overcharged?)
        OK, three points – legal ethics. An oxymoron in my opinion as currently practiced. Zealous representation, which is a proper aspirational goal, morphs into anything goes – overcharging, discovery abuse, witnesses you know are lying, court whore “experts,” etc…
        Physician heal thyself!

      • Given the procedures used by 44 other states and the federal government, the Virginia switch to judge sentencing is reasonable. However, there should be public posting of the sentencing rules for specific crimes and each judge’s sentencing decisions. Simple equal protection requirements should dictate this. A convict should not receive substantially different sentencing for the same crime based on which judge he/she gets.

        • Agree. And that’s why we have State rules instead of each locality deciding.

          • As Reagan said “Trust but verify.” We need the sentencing given for each felony case posted by court and by judge.

        • Nor should a convict with 50 pounds of marijuana in Arlington County get community service while the same convict would get decades in jail in Goochland County.

          Virginia law needs to start putting some serious guardrails around our Commonwealth Attorneys. If juries are too fickle to sentence the guilty then politicized virtue signaling Commonwealth’s Attorneys are too fickle to decide which laws to prosecute and which not to prosecute.

  2. A good objective, non-partisan summary per your usual. Thank You!

    You did explain in an earlier post the issue of jury sentencing. Can you go over it again?

  3. … and prosecutorial misconduct?

    • https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1001&context=ncippubs

      In California, from 1997 to 2009, there were 707 instances where a judge found that a prosecutor committed misconduct. Only six of those—less than 1 percent—resulted in a public sanction by the state bar. And even that number significantly underrepresents the problem: Most instances of prosecutorial misconduct do not result in a judicial finding in the first place, because the misconduct either goes undiscovered or is not taken seriously by the courts.

      In Massachusetts, as of April 2016, only two prosecutors had been publicly disciplined since 1980, despite at least 142 instances over that same period where a judge reversed a guilty verdict or dismissed charges based on a prosecutor’s misconduct. In contrast, over 1,400 non-prosecutors have been disciplined in Massachusetts over roughly the last 15 years. And in Louisiana, the first professional sanction against a prosecutor didn’t occur until 2005.

  4. HB 5058– Attention criminals, be sure to smash out your brake lights before transporting drugs, dead bodies, or any other thing that you would not want used as evidence against you in a court proceeding.

    • Generally, I agree with you about this bill. The only part of it I like is the prohibition of using the aroma of marijuana as justification for searching a car. As I said in my post, I don’t think this bill will be that effective in stopping racial profiling or stopping folks for the offense of “driving while black”. If a cop wants to stop someone, he can always find a justification. He could say that the driver was weaving in and over the center line, therefore he was suspicious the person was DUI. He could say that the driver failed to come to a complete stop at a stop sign. People doing the things you mentioned do not want to bring attention to themselves; therefore, they better not smash out their brake lights.

  5. I also want to thank these legislators for passing this law that basically means that there is no penalty for running with a loud exhaust.

    Apparently, Democrats don’t care about noise pollution.

  6. “The bills go even further to require sheriffs and police chiefs to request the records of applicants who have worked for other departments.”

    People on this blog wonder why I favor small, constrained government. It’s 2020. The sheer incompetence of not having requested the employment (and other) records of employees who will be issued weapons and provided with arrest powers is staggering. What manner of dimbulb would hire somebody without requesting their records?

    • The bill doesn’t require them to READ the records after requesting them.

      Perhaps some funding for “Hooked on Phonics” materials might be needed before that could be a possibility.

    • re: ” What manner of dimbulb would hire somebody without requesting their records?”

      The kind that pay lower wages and can’t compete with higher payer jurisdictions and are desperate for personnel.

    • Uh, the same dimbulbs who would “hire” someone who sat behind a cardboard desk on TV shouting “You’re FIRED!”, and believe them?

  7. “Another major enacted bill that needs highlighting is HB 5099 (and SB 5030) which expressly prohibits the use of no-knock search warrants. Furthermore, the bills require that search warrants be executed during the day, unless authorized for a later time by a judge, for good cause shown.”

    I give the GA and the governor two thumbs up for this one.

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