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.
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.