By Dick Hall-Sizemore
Despite recently having a special session to devote to criminal justice reform, the General Assembly has a healthy docket of criminal law and public safety reform bills to consider this session. I have selected a few to highlight below. Unless otherwise noted, the bills are still in their original committees.
Elimination of the death penalty—SB 1165 (Surovell—Fairfax), HB 1779 (Carter—Prince William), and HB 2263 (Mullin—James City). The Senate bill has been reported out the Senate Judiciary Committee (why do they insist on changing longstanding committee names?) and is in Senate Finance (being a creature of habit, I will continue to use the former committee name, rather than Finance and Appropriations).
Expungement—Currently, the ability of an individual to have his criminal history record expunged is limited. HB 2113 (Herring—Alexandria) and SB 1283 (Morrissey—Richmond) would provide for the automatic expungement of certain criminal history records under certain circumstances.
Mandatory minimum sentences—SB 1443 (Edwards—Roanoke City) would eliminate all mandatory minimum sentences. It would also allow any person currently serving a mandatory sentence to petition the court for a sentence modification.
Marijuana legislation—SB 1406 (Ebbin—Alexandria) would eliminate the criminal penalties related to marijuana. It would establish a regulatory structure for the manufacture and sale of marijuana. The Democrats pushed back on the regulatory aspect of this legislation that was introduced on behalf of the administration. The bill originally placed the regulatory authority with the ABC Authority. As reported out of the Rehabilitation and Social Services Committee, it would create a new agency to regulate the manufacture and sale of marijuana. The vote to report the bill was 8-7, with all the “no” votes cast by Republicans. It is now in the Judiciary Committee (formerly called the Committee on Courts of Justice).
Court of Appeals expansion—SB 1261 (Edwards—Roanoke City) originated from the Judicial Branch and would expand the Court of Appeals from 11 to 15 members. Prior discussion of this bill on this blog can be found here.
Republican bills in the public safety arena have tended to focus on the Parole Board.
Victim notification—The current law directs the Parole Board to “endeavor diligently” to contact a victim before making a decision to grant parole to an offender. HB 1761 (McGuire—Henrico) and HB 2141 (Miyares—Virginia Beach) would require the Board to contact a victim before granting parole. Not addressed is the situation in which the victim has moved (to Alaska, for example) and left no forwarding address. Would the inability to contact the victim in such a case mean that the Board could not grant parole to an offender?
Individual votes—HB 1972 (Rush—Montgomery) and SB 1103 (Sutterlein—Roanoke County) would require that individual Board member votes be made public. The Senate bill was reported of its first committee (10-4) and now is in Finance.
Release notification—Sen. Obenshain (Harrisonburg) has met with success with his bills dealing with notification of victims and Commonwealth’s attorneys of the pending release of paroled offenders. (SB 1104 and SB 1125)
In another area, Delegates Cox (Chesterfield, HB 2087) and Les Adams (Pittsylvania, HB 2149) have introduced bills limiting the duration of executive orders issued pursuant to the Emergency Services and Disaster law.
Other Bills of Interest
Following are other bills that caught my eye and are worth following;
Controlled substances—HB 2303 (Hudson—Charlottesville) would significantly reduce the criminal penalties for possession of controlled substances.
Concealed weapons—HB 1773 (Freitas—Culpeper) would abolish the requirement for a permit to carry a concealed handgun.
Sexually violent predators—SB 1244 (Morrissey—Richmond) would repeal the statutes requiring civil commitment of sexually violent predators. I doubt if there is much support for this politically fraught issue. The topic of civil commitment of sexually violent predators is complex with a long enough history in Virginia to make it deserving of a separate post all its own.
Parole—SB 1370 (Edwards—Roanoke City) would reinstate parole. There is probably a lot of support among Democrats for this bill, but it is a controversial subject, to say the least. (I would also guess that there are some Democrats who would oppose it.) There is not a lot of time in this session and Democrats have several other priorities (already listed). If Democrats maintain control of both parties and the Governor’s office after the fall elections, this issue may get more attention in the 2022 session.
Discredited forensic evidence—SB 1105 (Stanley—Martinsville) would provide grounds for appeal for a defendant (i) convicted with the use of discredited forensic evidence or (ii) upon presentation of new forensic evidence that was not available at the time of his trial.
Board of Local and Regional Jails—The General Assembly, at the behest of the McDonnell administration several years ago, stripped the Board of Corrections of oversight authority of the Department of Corrections. The board was left with authority over only local and regional jails. Last year, the legislature changed the name of the Board of Corrections to reflect this change in focus and further cleaned up the statutes and explicitly gave the Department of Corrections authority to issue regulations governing its operations. Apparently, Sen. Marsden (Fairfax) has had a change of heart over voting for that 2020 bill. His SB 1363 would restore some of the authority of the Board to monitor the Department of Corrections. This is a minor bill and not well drafted, but it will be interesting to see how Democrats handle it.
The Democrats are exhibiting some inconsistency in their adherence to at least one general principle—the value of judicial discretion. One of the major arguments made in favor of abolishing mandatory minimum sentences is that they limit a judge’s discretion. Judges know the unique circumstances of individual cases and therefore should be free to fashion appropriate sentences, the argument goes. Yet, HB 2038 (Scott—Chesapeake), which would limit the amount and type of active incarceration a judge could impose on a technical violator, is moving right along in the House Courts of Justice Committee.
(A technical violator is an offender on probation who has violated one or more of the conditions of his probation. Although he has not committed a new crime, his probation could be revoked and he could be sent to jail or prison for part or all of his prior sentence that remains suspended. This is another subject that is complex enough to deserve a separate post and discussion.)