Senate Democrat Promises on Police Reform

By Steve Haner

What follows, without edits, is the full list of legislative proposals now endorsed by the Virginia Senate Democratic Caucus. With 21 members, if they all show up and vote aye on all of these, they pass in the upcoming special session. Bills would then have to also pass the House of Delegates and be signed by the Governor. This follows up an earlier post by Dick Hall-Sizemore.

  1.  Bringing Equity to Virginia Policing
    ● Prohibit No Knock Warrants (Breonna Taylor)
    ● Ban Sex With Individuals Arrested by Law Enforcement
    ● Prohibit Hiring of Officers Fired or Resigned During Use of Force Investigations
    ● Create a Decertification Procedure for Law Enforcement Officers
    ● Ban chokeholds and strangleholds (George Floyd)
    ● Require Attempts at De-escalation Prior to Use of Force
    ● Require Warnings Before Shots Fired
    ● Require Law Enforcement to Exhaust All Other Means Prior to Shooting
    ● Create Duty to Intervene by Fellow Law Enforcement Officers
    ● Prohibit Shooting at Moving Motor Vehicles
    ● Require Departments to Create a Use of Force Continuum
    ● Require Comprehensive Reporting by All Law Enforcement Agencies Including Use of Force Data
    ● Defelonize Assault on Law Enforcement Officer (Return to Misdemeanor Offense)
    ● Cancel HB599 Funding (Virginia supplemental funding for local police departments) After Local Police Have Disproportionate Use of Force Incidents In their Jurisdiction
  2. Expand Local Authority to Respond to Mental Health and Regulate Law Enforcement
    ● Create Local Authority for a Marcus Alert System – System to Report Acute Mental Health Crises
    ● Create Local Option for Citizen Review Board Empowered to Investigate, Fire and/or Discipline Officers
  3. Restore Courts’ and Prosecutors’ Flexibility to Effect Mercy
    ● Confirm Prosecutors’ Authority to Drop Charges
    ● Enhance Courts’ Ability to Expunge Charges for Dismissed Charges, Substance Convictions and Pardoned Offenses
  4. Reduce Racial Profiling Opportunities for Law Enforcement
    ● Prohibit Searches of Person or Vehicle Based on Odor of Marijuana Without Probable Cause for Other Offenses
    ● Prohibit Stops for Equipment Violations Not Covered by State Vehicle Inspection
    ● Secondary Offense For Dangling Objects, Extinguished Tag Light, Tinted Windows or Loud Exhaust
  5. Restore Equity to the Sentencing Process
    ● Jury Sentencing Only at Option of the Accused
    ● Eliminate Commonwealth’s Right to Demand Jury Trial When Jury Trials Suspended for State of Emergency
    ● Require Agencies to Determine Cost Savings for Introduced Criminal Justice Legislation
  6. Restore Equity to the Virginia Prison System
    ● Allow Earned Sentence Credit for Good Behavior During Prison
    ● Create Discretion for Compassionate Release for Terminally Ill or Permanently Disabled Prisoners


The closest it comes to “defunding” police is the proposal to withhold state monies in a particular revenue sharing formula from a local agency with “disproportionate use of force incidents,” a metric not defined in the news release but likely to be the battleground in any bill. Would any agency with incidents above the state median lose funds? Disproportionate to the racial makeup local population?

Some popular proposals – the use of mental health professionals on certain calls and police review panels – are listed simply as local options. Perhaps that was necessary to get all 21 caucus members to sign.

If there is not already a process for removing state certification from a law enforcement officer who has exhibited bad behavior, there certainly needs to be.  I would have assumed what could be granted could be revoked. The Department of Criminal Justice Services may then become the focus of regular complaints from unhappy citizens, just as other state agencies deal with contractor or health code issues.

I assume they mean prohibiting an officer from shooting at a moving vehicle, since the rest of us are already covered by such laws. Requiring warnings or exhaustion of “all other means” prior to discharging a weapon sound great in theory, but how many rounds does the bad guy get for free? Lowering the punishment for assaulting a policeman is going to be a hot vote in a future election, especially if you are voting at the same time to punish cops.

And, of course, the list gets way past controversial police behavior and into the courts and corrections system, bringing up previously rejected ideas such as not allowing juries to recommend sentences, and offering additional paths to shorter time incarcerated.

As I have noted before, this is not my wheelhouse. Others who comment regularly have deeper experience and understanding. Let the games begin.

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35 responses to “Senate Democrat Promises on Police Reform

  1. 4a my favorite…
    “According to court documents, Officer Michael Weeks, who joined the department in July 2012, led investigators to the drugs. The documents indicate Weeks was driving Feb. 19 (2015) in the 1900 block of Virginia Beach Blvd. when he smelled a strong odor of marijuana. He canvassed the area and determined the smell was coming from a storage facility located at the corner of Maxey Drive and Virginia Beach Boulevard.”

    https://www.pilotonline.com/news/crime/article_8ce7f05a-ba46-5547-b842-71085af86a8f.html

    What makes this fun was the weather and geometry.
    The daytime temperature was in the low 20s. The wind was 15mph from the northwest.
    The storage facility is located 50 yards SOUTH of Virginia Beach Blvd.

    Man, what a nose….

  2. This seems to be a fairly long list of things that some say needs to be addressed – for a govt institution that has been around quite some time.

    I’d be curious to hear Dick’s take. And I hope that members of the Police are also involved to make sure we don’t create unintended problems.

    I’d also be interested in hearing African American and legal aid groups input on these things.

    Finally – I wonder if RPV has a view on these.

  3. This is a long list. I agree with a number of them. However, the details of some, if not carefully constructed (particularly use of deadly force), could result in police simply abandoning cases in which force is needed (the liability could be too high). Exhausting all alternatives before using a firearm could be a no win situation for police in settings where the whole event takes place in seconds. Some of recommendations seem unrelated to police on citizen violence. Rather, they seem to be pet projects that found police reform to be a convenient “Christmas tree” on which to throw some additional ornaments.

  4. “Defelonize Assault on Law Enforcement Officer (Return to Misdemeanor Offense)”. You have to be kidding.

    We will have no police officers.

    And all 21 Democrats in the Senate signed up to this? Really?

    • Assault on an LEO was a misdemeanor from about 1790 until 1997. Seemed to work ok. I’m sure sure assaults on LEO’s are not down since 1997. If anything, that charge is used when law enforcement is concerned about a citizen complaint to leverage the citizen to plead. My firm once had a case where a 110 lb. 5’1″ woman was charged with Felony Assault on LEO for slapping an officer’s hand after she gave him a speeding ticket. You think that should be a felony?

      • No, and I suspect she wasn’t convicted of such. I just said it would be a controversial change, politically fraught. Thanks for reading, Scott.

      • and that’s the problem. In the hands of the wrong LEO – really bad stuff can happen to a citizen whose main crime was bad judgement in dealing with the LEO.

      • Shouldn’t there be degrees of assault on a law enforcement officer? We don’t want people assaulting LEOs in any event, so it fits an add-on charge. But minor assaults, hand-slapping or spitting on shoes, clearly seems appropriate for a misdemeanor charge. But more aggressive action, which might include spitting in a officer’s face or sucker punching an officer, seems appropriate for a felony charge.

        We all need to realize that the real problem is local government’s failure to identify and remove bad cops, ala Mayor Jacob Frey of Minneapolis. And now the idiots on the City Council have proposed a city charter amendment to abolish the police force.

        And we may well have similar problems right here in Fairfax County. FCPD Use of Force Reports from 2016 to 2019 state that use of force incidents were rare (approximately 0.10 percent of all service calls), but that, even though African Americans represented less than 10 percent of Fairfax County residents during this time, the percentage of use of force incidents involving African Americans grew every year: 2016 – 39.05%; 2017 – 40.44%; 2018 44.4%; and 2019 – 45.78%.

        This is a problem for Jeff McKay and the rest of the supervisors, as well as County Executive Bryan Hill and Police Chief Edwin Roessler, to answer. If I were a supervisor, I’d be inclined to ask for the Chief’s resignation.

        All the “One Fairfax” policies aren’t worth crap, when local officials fail to do their job by identifying and removing bad cops. This didn’t happen on McKay’s watch but he’s in the wheelhouse now.

    • My secretary’s (sweetest woman on Earth) ex-husband, a complete thug who made her life miserable, was arrested and charged with assaulting a police officer when he spit on the ground by the cop’s feet.

      There was much, but short-lived, joy in the office because my secretary was advance planning sole custody, then the judge tossed the charge, but still, he had to pay a lawyer… which resulted in yet another missed child support payment.

  5. Some good ideas there but not sure getting to the core of the problem.

    My perception/memory is that some decades ago, New York City police made some significant crime-reduction advances by stopping people for minor offenses, and using that initial stop as a springboard for searching for more serious offenses, not immediately apparent. This practice of exploring any person stopped for additional issues (touched on above for marijuana) seems to me part of the problem. Also there seems to be an anger management issue.

    • The problem is that “stop and frisk” works differently for those who have access to good lawyers than it does for those who do not – poor people get drawn into the criminal justice system – and wealthier folks burn the LEO a new butt….

      You cannot have a criminal justice system that works different ways depending on your economic status without adverse impacts to how lower income citizens view the police.

      That’s part of the frustration with the BLM folks.

  6. No “no-knock” will save more innocent lives and LEOs. In fact, for any warrant when they have to forcibly breach the premises, aside from shouting, a siren blast should be required too. A person roused from sleep may not deferentiate the word “police” being shouted by six different cops, but everyone knows a siren.

    Too many cops get killed by some poor bastard (particularly when the cops hit the wrong house) who just thought he was defending his life.

    • This has to be a “red letter day”! Imagine me ratifying a comment by Nancy_Naive. I have always opposed “no knock” warrants. When combined with sovereign immunity, they reek of a police state mentality. Finally, an issue which should unite genuine libertarians, conservatives and leftists.

      • Agreed. Add asset forfeiture, which I would think is another situation where the impact is hardest on those with limited means.

        • I like RICO. This is god’s own truth. The Feds have been known to charge money, boats, airplanes, etc., etc., with crimes under RICO. Now, remember, I’m a bit of a twisted sister so liking something doesn’t mean I think it’s good, just twisted.

  7. The problem is that if we all felt this way all along – why didn’t we do something about it before now?

    Virginia had decades of General Assemblies that did nothing and not a whole lot of us were that upset about it.

    Only now, after al this upheaval are we saying.. ” yeah that’s wrong”.

    This is part of what all the protests have been about…

    “no justice, no peace”.

  8. Larry,
    Libertarians and real conservatives have opposed “no knock” warrants since they appeared. However, as you probably already know governments are notoriously deaf to citizen petitions and there are plenty on the left and right who scream in defense of “compelling state interest” and judges are predisposed to favor government over liberty. Just listen to the chorus on the left and the right defending confiscation (temporary – we hope) of individual liberty in the name of defeating a virus which frankly is being revealed as to not be so serious as the initial warnings of impended cataclysm indicated.

  9. Are you saying that the GOP proposed such bills and the Dems oppose them?

    😉

    it will be interesting to see who supports bills to do away with no-knock and I’m suspecting it won’t be unanimous…

    re: the cataclysm – I dunno.. it looks like the Gov of Fla, Texas and Arizona are falling back and doing what Northam did…no?

  10. Thanks, Steve, for posting the list. I had looked for the House list, aka the Black Caucus list, but could not find it. I had not taken the time to look for the Senate list. A lot of these are overlapping. Many speak to training and best practices. I don’t think items like “use de-escalation before using force” and “exhaust all means before shooting” should be in the state Code. If an officer has to exhaust all means before shooting, who is to say when all means were exhausted?

    Scott Surovell’s comments illustrates a lesson I learned over the years from attending Courts of Justice meetings. Things that seem good on their face may turn out different in real life. In these committee meetings, the trial lawyers use their experience to examine the possible consequences of legislation. In this case, Surovell points out how the possibility of a felony charge can be used in plea bargaining. Prosecutors are known to pile on charges, often unreasonably, in the effort to get a plea bargain.

    I was surprised that establishing citizen review boards would be optional. From what I have read, the House would make it mandatory.

    Another surprising item was having the defendant opt out of having the jury set the sentence. It seems to me that, if there is going to be a jury trial, the jury should set the sentence. A better approach would be to allow the jury to have access to the sentencing guideline recommendations (I plan a post on this issue, soon.) If the judge is hearing the case without a jury, the judge gets the sentencing guidelines. However, the law not does not allow the jury to see these recommendations. I have always thought this was unfair. It is one primary reason that there are so few jury trials. Juries almost always recommend sentences higher than the guidelines and defense attorneys know this.

    Some of these proposals are unnecessary or will do no good. I am sure that Commonwealth attorneys are aware of their ability to drop charges. Prohibit traffic stops for items not on the state inspection list–tail lights and brake lights are on the inspection list. Inmates in prison already earn sentence credits for good behavior. They can knock off up to 15 percent of their sentences with earned sentence credits (except those with life sentences).

    • Dick – thanks for the thoughts.

      A couple points, there are only six states in the United States that allow juries to recommend sentences. Most were states settled by Virginians as they moved west and adopted Virginia’s tradition of jury sentencing. The federal government and other states abandoned it long ago. Juries are unpredictable and ill-suited for sentencing in most cases. You’re correct that the randomness forces people to plead to crimes instead of taking matters to trial – even if they are innocent.

      The Circuit Court Judges in Arlington and Norfolk have refused to allows the Commonwealth Attorney to drop charges when they want – e.g. like the Flynn case in D.C. We are seeking to make the rule clear to shut down the outlier Circuit Courts. We’re also discussing making it clear that prosecutors and defendants can enter agreements for charges to be reduced after completion of terms and conditions – the Court of Appeals has progressively shut down that sentencing method in the 24 years I have practiced law.

      The Senate proposed local option review boards for now. Mandatory boards would be a big change, probably have fiscal consequences, have implementation issues in smaller jurisdictions, and at least from my personal point of view, a hard thing to design for hundreds of police departments in 60 days. We were comfortable with local option for special session and perhaps discussing regional boards or something more prescriptive later. In my discussions with law enforcement, that’s probably the issue they have the most concerns about among everything that’s been proposed.

      • Thank you, Senator. I did not have the pleasure of working with you before I retired. I worked in Legislative Services for about 8 years, bounced around a little, and then was at DPB for the past 26 years. I was in the Public Safety section, attended House Courts of Justice subcommittee meetings, and HAC and SFC public safety subcommittee meetings, none of which you were on. However, I was impressed watching you on the floor during sessions, particularly while you were in the House. You have a way of getting to the practicalities and common sense of an issue.

        That is fascinating that some judges are not allowing Commonwealth’s attorneys to drop charges. I thought the Commonwealth’s attorneys had pretty much seized control of the criminal process. Some judges seem to be fighting back. Even if the CA can’t drop the charge, cannot he not still bargain/threaten before he officially files charges? That might strengthen his position because he can tell the accused that, unless he takes the deal, the charges will be filed and the judge will not let them be dropped.

        Your comments are another example of being able to learn from those that deal with the real world. I did not realize that jury sentencing was limited to just a few states. I have been a proponent of letting juries use the sentencing guidelines, but, if non-jury sentencing is a legitimate (i.e. widely used elsewhere) option, then it would be a lot easier to just let the judge use the sentencing guidelines in a jury trial. If non-jury sentencing is authorized, however, everybody needs to be prepared for more jury trials. That will mean longer time for trials and, consequently, back up on dockets.

        I like the idea of reducing charges after the completion of terms and conditions. Isn’t that akin to deferred sentencing? Some members of the GA go ballistic over that practice.

        • Thanks Dick. Likewise.

          Here’s a fascinating article on the historical origins of jury sentencing I found:

          https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3419&context=cklawreview

          Here’s some info on the prosecutor problem:

          https://www.washingtonpost.com/opinions/arlington-judges-second-guess-their-elected-prosecutor-for-daring-to-challenge-the-status-quo/2020/03/27/d337d8ee-6f95-11ea-b148-e4ce3fbd85b5_story.html

          https://www.pilotonline.com/news/crime/article_d260c5ce-6d3f-11e9-96bb-0364d44e54da.html

          Some judges are pushing back on some of the prosecutors pushing reform. It’s mind boggling to me given that prosecutors have been exercising their discretion about what to prosecute for centuries.

          The same issue just played out with General Flynn (whose charges they are trying to drop AFTER he pleaded guilty which is a little different). The Federal Rules of Criminal Procedure have clearer guidance than the Virginia nolle prosequi statute.

          • Dick Hall-Sizemore

            Thanks for the link to the article on jury sentencing. I look forward to reading the article.

            I suspected that was the case with judges and prosecutors–judges elected from the “old guard” not agreeing with the judges pushing reform. In Arlington, it seems as if the judges are trying to micro-manage the prosecutor in an unprecedented way. Prosecutorial discretion has always been an element in the criminal justice system and is needed. The judges better be careful what they ask for; their dockets could become very crowded.

            In Norfolk, the situation was different. Underwood adopted a blanket policy of not prosecuting marijuana cases in circuit court. I have to agree with the Supreme Court; that is taking prosecutorial discretion too far; it is substituting his judgement on policy for that of the General Assembly. Now that the GA has decriminalized marijuana possession, relations between the judges and the prosecutor can return to a friendlier basis.

          • TooManyTaxes

            Senator – I’m not admitted to practice in Virginia and don’t practice criminal law. But based on 40 plus years of practice, it strikes me that there is a difference between a prosecutor deciding not to prosecute an individual in a specific set of circumstances or deciding which charges to bring and a decision not to prosecute a specific crime. I think the former fits into the historical practice of prosecutorial discretion. But the latter seems to be an individual setting him- or her-self as a replacement for the legislative body.

            Deciding that particular conduct is no longer to be criminalized is a decision for the legislative body and not a prosecutor – either elected or appointed. That troubles me. Moreover, if we find a criminal statute being applied in some parts of a state but not others, we are certainly not seeing equal protection applied in that state. That bothers me too. It should bother everyone.

          • TooManyTaxes:

            Thanks and yeah that was the crux of the fight in the NOVA/Chesterfield Commonwealth Attorney races in 2019. It’s a similar debate to the McAuliffe blanket voter restoration versus the individualized determination the Supreme Court of Virginia ultimately required – at the end, it really turned into form over substance in terms of the outcome.

            At the federal level this evolves out of what you think of the “Take Care” Clause:

            https://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitution#Clause_5:_Caring_for_the_faithful_execution_of_the_law

            For example, the Trump Administration has not prosecuted a single law enforcement officer since he took office. Some would say its the same thing but people pick and choose what they like depending on which groups are effected.

            At the state level, some would point out that we tolerate many laws are already effectively not prosecuted generally or situationally – e.g. Misdemeanor Adultery, DIP/Open Container at Tailgates/Concerts, Speeding 1-9 MPH Over the Speed Limit.

            The proposed legislation is an attempt to incorporate DOJ guidance for Voluntary Dismissals into the Code so that there are some guardrails on the situation.

            Today, Virginia Judges have nearly complete discretion on green lighting voluntary dismissals and because a refusal to allows a dismissal is not an appealable decision, they never get told they were wrong and you don’t get an even application of the law across the Commonwealth. Judges are not supposed to have unlimited discretion on anything – that turns them into policy makers or emperors. There has to be some rules that constrain their actions.

          • TooManyTaxes

            Senator – I’d make the same argument as to the items you listed. If the Trump administration has adopted a policy of not prosecuting police officers under any circumstances, that’s wrong and is equally unacceptable based on my earlier comments.

            If we have old laws on the books that we don’t want to enforce, remove them. You’re certainly in a position to get that started. If judges have too much power, change the statute. If we need guidelines for state prosecutors, enact legislation.

            A judge or prosecutor who sets him or herself up as the decider of which laws to enforce is dangerous. Decades ago, I appeared before a state judge in Johnson County, Iowa for a second time and raised the same argument I had made previously (the “Filed Rate Doctrine”), for which I had provide citations to authority in my papers. The judge told me that he did not like my position but the law was the law.

    • https://www.vablackcaucus.com/news/c/0/i/47508787/vlbc-special-session-priorities

      There is the Legislative Black Caucus list. A comparison would be interesting. The “Cops and Covid Session” will be quite a show.

  11. Re: As far as assault on officer, these days we do have cameras on the officers…. if the assault can be proven to be serious/egregious via video evidence or multiple offenses, then that should be taken into account re: seriousness of charge.

    In general, though, in Virginia we do need the ability to “tone down” the charges in some cases. GA members have typically written laws with extreme punishment.

    Example- If you park your car in the wrong place at Burke Lake Park, you could be arrested and thrown in jail for criminal trespassing against the State of Virginia. In its wisdom, the GA law governing fishing parking lots has not allowed for parking violation as an option.

  12. What happens when the sitting Virginia Attorney General resigns to run for governor? Does the governor just appoint an interim Attorney General?

  13. Pingback: A List of the Police Reform Proposals So Far | Bacon's Rebellion

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