By Dick Hall-Sizemore
The House Committees on Courts of Justice and Public Safety held three meetings/public hearings in preparation for the General Assembly’s consideration of criminal justice and police reform in the upcoming special session. The sessions were billed as public hearings, but, in actuality, most of the time was spent in hearing from invited speakers. Comments from members of the public were relegated to the end of the three-hour period and each speaker was limited to three minutes. At each session, only about 10 members of the public made comments.
The subsequent list of criminal justice legislative issues adopted by the House leadership for its special session agenda can be found here. Remarkably, all but three items were also included on the list released earlier by the Virginia Legislative Black Caucus. (See my compilation of that list here.) The only items not on the VLBC list was the Attorney General’s proposal that his office be authorized to conduct “pattern or practices” investigations of police departments and two vaguely-worded proposals relating to vetting law-enforcement applicants and diversifying the Committee on Training of the Department of Criminal Justice Services (DCJS).
The VLBC proposals missing from the Democratic Caucus list are ones to “defund” the police and regulate, by Code, the use of force by police. Obviously, the Democrats knew what they wanted going into the meetings and tailored their lists of speakers to ensure they got it. Based on the resulting list of proposals, the meetings may as well have not been held.
Nevertheless, the presentations and member questions do provide significant insight into the concerns and opposition that will arise during the consideration of bills by the legislature. Also, perhaps they provided some guidance to the members in the actual drafting and tweaking of the bills. Rather than cover all the items on the list, I will review only five:
Decertification—Everybody supported expanding the ability to decertify law-enforcement officers. In fact, the law-enforcement representatives were as supportive of this idea as anyone else, if not more so. This is the tool to get rid of the “bad apples” discussed by Jim Bacon recently.
Under current law, a law-enforcement officer can be decertified only under the following circumstances:
- Conviction of
- A felony
- Misdemeanor involving moral turpitude, sex offense, or domestic assault
- Failure to maintain compliance with training requirements
- Having a positive drug test or refusing to submit to a drug screening
There is nothing in the law that would prevent a law-enforcement officer, fired for using excessive force or for lying about his actions, from being hired by another law-enforcement agency. It was shocking for me to learn from testimony by several police chiefs that they have fired officers only to have those officers get hired elsewhere without the new chief or sheriff contacting the former employer for a reference. Furthermore, at least one chief said that he had a difficult time obtaining the personnel records of some applicants and, in some cases, the prior department refused to provide any information about the applicant.
As with most proposals, the devil will be in the details. The discussions and concerns will boil down to the criteria to be used for decertification. Take, for example, the case of an officer involved in several instances of questionable use of force. He has not been fired, but he has decided to move on after it was made clear to him that he was not welcome in that department and any promotion would be unlikely. Should he be decertified? Could he appeal his decertification? Another question will be whether a decertified officer can ever be re-certified and, if so, under what conditions.
Training—Everyone also agreed on the need for more training. There was considerable criticism of the standards mandated by the Criminal Justice Services Board. A rural sheriff’s department official described the training standards on the use of force as “abysmal.” The director of DCJS reported to the committees that the agency is in the midst of a years-long effort to update and expand the training standards. Some committee members complained that the process was taking too long Overlooked, or ignored, was the fact that the DCJS standards are minimum standards. Agencies can exceed that minimum, and many do.
Also ignored by the members was the increased cost of any expansion in mandated training. During the public comment period, the director of the Rappahannock Criminal Justice Training Academy pointed out that implementing new training would be costly at a time when the regional training academies were operating on shoestring budgets as it were.
The Democratic Caucus calls for “standardizing and enhancing training for all police academies.” The fight will be over how much enhancement and what specific training the legislature wants to mandate. Then, there will be the question of how to pay for it.
Chokeholds and no-knock warrants—There was moderate pushback from the law-enforcement community on the proposals to ban the use of chokeholds and no-knock warrants. One speaker advocated, instead of prohibition, changing the criteria for their use from “reasonable” to “necessary.” A captain in the Fluvanna County sheriff’s department cautioned against using a broad-brush approach on use-of-force situations. He argued that chokeholds should be allowed in “last ditch situations.”
Regarding no-knock warrants, law-enforcement speakers argued that they were sometimes appropriate. Even the speaker from the Brookings Institution, invited by the committees to make a presentation, pointed out that no-knock warrants were not routine in Virginia and allowed only under exigent circumstances, mostly in drug cases. Perhaps that is why the Newport News sheriff said that law-enforcement “could do without” no-knock warrants. (His police chief, the one actually with law responsibilities, might disagree with him!)
Qualified immunity—The law-enforcement representatives were unanimous in their opposition to the elimination of qualified immunity. The Fluvanna County sheriff’s captain probably best expressed the concerns. He related that officers were worried that they would be exposed to multiple suits and they could not afford the resultant legal expenses. He argued that the recruitment pool is smaller than ever now and the repeal of qualified immunity would make it even harder to recruit. It seems that the Democrats’ answer to this concern is that individual officers will not have to bear these costs; rather, the liability insurance policies of the localities would cover them.
Citizen review boards—Citizen review boards have a great potential of holding law-enforcement accountable. All the non-law-enforcement presenters at the three meetings advocated the establishment of such boards with robust powers, such as the authority to subpoena witnesses and records.
Surprisingly, one of the major advocates of such bodies said, in answer to a question from Delegate Patrick Hope, that he did not think the legislature should mandate the establishment of citizen review boards. To be effective, he argued, such boards need to be built at the local level and be responsive to the community. The state role should be to provide explicit authority for their establishment and for their powers.
The reaction of the law-enforcement community was divided. The sheriffs were outright opposed to the establishment of citizen review boards. Their position was that sheriffs have to run for re-election every four years, thereby giving the citizens an opportunity to express their approval or disapproval of the way the sheriff is performing his job.
The only non-sheriff from the law-enforcement community making a presentation who addressed the issue was the police chief of Chesapeake. He was ambivalent about the value of citizen review boards. He contended that research, and his own experience, showed that such boards were more lenient than police chiefs in meting out discipline. He was adamant, however, on one aspect: The final authority to hire, fire, and discipline officers should rest with the police chief.
The Chesapeake chief went on to say that members of a citizen review board should have training in the decision-making required of officers. On his point he was backed up by Wayne Huggins, a retired Superintendent of State Police and the executive director of the Virginia State Police Association. In a response to a question from a committee member, Huggins said that he personally had no objection to citizen review boards, provided their members receive some training and have a basic understanding of the kinds of situations officers face.
If the legislature chooses to make the establishment of citizen review boards optional for localities, while authorizing the boards to have powers such as the issuance of subpoenas, the battles over this issue will be fought at the local level. This is one of those issues in which Democrats may find two of their priorities in conflict: the authorization for local employees to enter into collective bargaining and the desire for more transparency and accountability of law enforcement.
Two major issues were either ignored or only touched on by the House Democratic Caucus. Body cameras are probably the most effective means of holding police officers accountable. Implementing the use of body cameras can be complex and one would have expected at least one of the presentations to the committees to have been devoted to that issue. Yet, except in passing, there was no discussion of body cameras and the Democratic Caucus list does not include them. he omission of this tool is inexplicable.
The other “elephant in the room” is the law-enforcement response to persons with mental health problems who are undergoing a crisis. This was a major topic for some speakers and some members followed up with questions. There was a general consensus that this is a critical issue for law enforcement. Yet, except for a recommendation to set up an alert system (Marcus Alert), the House Democrats offered no guidance or assistance to police on this topic.
As one of the invited speakers pointed out, a “robust continuum” is needed, with collaboration between law enforcement and mental health. Furthermore, a retired Hampton police officer explained that a full-time mental health unit would be needed to implement such a continuum.
In summary, it is a complex issue and expensive, on which the Democrats have, so far, punted. To his credit, Del. Jeff Bourne, D-Richmond, informed the committees that he was working on legislation that would codify “some sort of bilateral response.” However, at the time, he was working only with the mental health advocates; law enforcement was not involved, although he urged anyone interested to contact him. It will be interesting to see what he introduces.
Unlike their House counterparts, the Democratic Senate Caucus has not released a formal agenda. However, some of the Senate leaders on the criminal justice reform issue have introduced bills that go further than the House has proposed:
- SB 5007, Joe Morrissey, D-Richmond: Does away with jury sentencing, unless requested by the defendant.
- SB 5014, John Edwards, D-Roanoke: Requires all law-enforcement officers to receive crisis intervention team training.
- SB 5030, Mamie Locke, D-Hampton: Omnibus bill. Includes required training on de-escalation and statutory restrictions on use of force.
- SB 5032, Scott Surovell, D-Fairfax: Amends the statute pertaining to assault on law-enforcement officers to make the offense a felony only if it results in bodily injury.
For anyone interested in public policy on criminal justice, the special session is shaping up to be a treat.
My Soapbox
There will be some that will contend that there is no evidence that Virginia has a problem; that there have been few instances of police misconduct in the Commonwealth. However, bias against Black people and other minorities can take many forms, some subtle and some blatant. The subtle forms are perhaps the worst because they are visible only to those directly affected and not to those of us who are not affected. Here are three examples of subtle and blatant bias that demonstrate why I think there is a racial bias problem in Virginia’s law enforcement system:
- A Black friend, a respected professional, tells me that he has frequently been stopped by police on questionable grounds and had his car thoroughly searched. The general issue of “driving while black” has been well documented in North Carolina. There is no reason to think that Virginia is different.
- A Black mental health provider told the joint committee that, unlike white parents, he does not tell his children, “The policeman is your friend.” Rather, he tells them to avoid the police when possible and, if confronted, to be quiet and do exactly as they are told.
- A Black pastor, upon being threatened by a small mob of white men on his own property and holding them at gunpoint while calling 911, was then arrested by the sheriff’s deputies who answered his call for help.
Early in the first joint meeting of the two committees, Del.Don Scott, D-Portsmouth, asked the best question of any in all the meetings. He is a new delegate, but he has practiced law for more than 20 years and it was obvious that he knows how the real world works. He commented to the Superintendent of State Police that he had looked at lots of policies and procedures and it would seem they should be enough. But, he continued, they had not been enforced and officers seem to know there would be no repercussions for bad behavior. Therefore, the issue seems to be one of cultural acceptance. So, he asked, “What are you doing differently now, in light of the George Floyd incident?” He asked this question, or a variant, several more times over the course of the three meetings. The only answer he got dealt with more training and policy reviews.
Chief of Police Larry Boone of Norfolk was more emphatic, exclaiming in his presentation, “Culture eats policy for lunch.” In other words, the General Assembly can set out policies (de-escalation, force as a last resort, etc.) as much as it wants, but, until the culture changes, not much will happen. Boone’s recipe for changing the culture is to hire the right people. “Training won’t change people,” he contended. While I agree with that idea, I also submit that culture change has to start at the top, as Del. Scott indicated. The top brass has to let it be known, in clear and no uncertain terms, that unethical behavior and unnecessary force will not be tolerated. An active, knowledgeable group of citizens, possessing the necessary tools to conduct thorough investigations and follow up on citizen complaints, would facilitate that change in culture. Even the most well-meaning police chief or sheriff may not be aware of all the actions in the lowest ranks of her agency and that group of citizens could help identify any bad apple before it stinks up the agency.
