Virginia Democrats Gearing Up for Police Reforms

By Dick Hall-Sizemore

The upcoming special session of the General Assembly will be about budget cuts and police reform.   Speaker Eileen Filler-Corn announced last week that actions on police reform would be allowed to be taken up at the special session to be held on a to-be-announced date.

Whenever it is held, it apparently will not be soon enough for the Democrats. “There is an urgency to provide relief from what many have seen as a racist criminal justice system and its application,“ said Charniele Herring, the majority leader.

None of the proposals being talked about are radical and none will constitute an immediate fix. Some of the proposals will cost money. Furthermore, one limitation that seems to have been overlooked is that most policing is under the jurisdiction of localities, which means that there is just so much that the state can do. Finally, the General Assembly has grappled with some of these issues in the past and has not resolved some of their complexities, making it improbable that it will be able to do in a short special session.

Following is a list of proposals that are being floated, compiled from the article in yesterday’s RTD, along with my comments:

Banning chokeholds—Good idea. Of course, banning their use by police will not mean that police will not use them in certain circumstances. Still, the use of such tactics could be eliminated from training curricula.

Training—The general proposal is for more training for law enforcement officers in de-escalation and use of force. Except for the State Police, law enforcement training is the responsibility of localities and sheriffs. The state Department of Criminal Justice Services is responsible for establishing minimum training standards for law enforcement. The actual training is provided by local or regional training academies. The state partially funds the regional training academies. The General Assembly could direct DCJS to amend its training standards to include more emphasis on de-escalation and the use of force. Such an amendment would have to go through the drafting and regulatory process and then be implemented by the training academies. Depending on the extent of the changes and how the academies are now training officers, there could be an increase in cost that would have to be borne by the localities

Citizen review boards—There seems to be broad support for the mandating of the use of citizen review boards at the local level to review the use of force by police. Herring specifically said that she planned to introduce such legislation.  Generally, this would be a good reform. The tricky part will be defining the composition of such boards, the scope of their jurisdiction, and the scope of their ultimate power.

Funding—No one has proposed “defunding” the police. The Governor has proposed reprioritizing current funding to areas such as body cameras for police and community outreach. Herring wants to use funding to stop incarcerating people with substance abuse problems and mental illness.

These general ideas concerning funding sound good on the surface. Dig a little bit deeper, however, and problems become apparent. First of all, funding for local law enforcement in Virginia is fractured. Town and city police departments, as well as the police departments in the urban counties, are funded by the localities. There is a pot of about $200 million in “599 money” that the state distributes to these jurisdictions. As for the rural counties in which law enforcement is provided by sheriffs, the state provides a large percentage of the cost of that service. To “reprioritize” for police, the state would be limited to these pots of money. Technically, it could be done with the 599 money, but making sure that the money was spent in accordance with any new requirements or priorities would require beefing up state oversight. As for the funding for sheriffs, those locally-elected officers would strenuously fight any requirements to divert their funding to any uses other than deputies.

The proposal for body-worn cameras has a lot of possibilities to enhance police accountability, as demonstrated by a recent incident in Fairfax County. However, the use of body cameras is fraught with problems, from both policy and fiscal perspectives. Some of the policy questions: Who should have access to the body camera footage? How long should police retain body camera footage? When must officers turn the cameras on—all the time, when they are on break, when they are riding in the car? Should there be statewide, mandated policies or should localities be allowed to develop their own policies and procedures?

Then there are the financial considerations. The cost of using cameras is not limited to the expense of the equipment  Indeed, that is probably the least expense. There is the expense of storing thousands of hours of video footage. A large, possibly unanticipated cost, has been the additional burden put on prosecutors to screen all this video for evidence.

The need for additional prosecutors was addressed in a 2018 report issued by the Compensation Board. The report recommends that localities be required to hire one additional assistant Commonwealth’s Attorney for every 75 body worn cameras used by the police. The 2019 General Assembly included this requirement, with some flexibility, in language in the Appropriation Act, but did not include additional funding to support the requirement.

In other action, the General Assembly prohibited the State Police from distributing the body cameras it had already purchased and set up a work group to study the issue. Among the recommendations of the work group were a continuation until July 1, 2021, of the moratorium on deployment of body worn cameras by state agencies and a continuation of the work group.  The budget bill and Appropriation Act for the 2020-2022 biennium included the required ratio of assistant prosecutors for body cameras and continued the work group, but did not include additional funding nor continue the moratorium on the deployment of body cameras by the State Police. Presumably, on July 1, the State Police can begin deploying the approximately 350 body cameras that have been sitting on the shelf for several years.

As for diverting substance abusers and the mentally ill from incarceration, drug courts have long been in use in the Commonwealth and, recently, mental health courts have been adopted in some localities. (These are not actually separate courts, but, rather specialized dockets presided over by current judges.) These special dockets have been supported by the judiciary and have widely been seen as effective.  However, their effectiveness depends on the existence of support and treatment staff, which requires additional funding.

Another proposed use for the diversion of funding, and related to the concept of de-escalation, is for mental health professionals for responding, instead of police, to situations in which a person in is experiencing a mental health crisis. This is another good idea that is now new. As was described in an earlier post, Fairfax County, as well as other localities, have established crisis intervention teams (CITs). The concept that these mental health professionals should be the only ones responding to such situations may be misguided, however. In many cases, the individual in crisis may be violent and the police may be needed to protect the mental health respondents. Instead of diverting money from the police to establish CITs, communities may prefer to provide additional funding.

If the state is not willing to provide the additional appropriations needed to support the use of body cameras and diversion of substance abusers and the mentally ill, the localities will have to choose between providing additional funding or diverting existing funding from law enforcement, schools, and other services. It is easy for the Governor and the legislators to talk about reprioritizing funding when it is somebody else that will have to do the reprioritizing with their money.

Bad cops—The Republican GOP caucus will seek to amend the state’s new collective bargaining law to “diminish a union’s power to protect officers ‘who don’t meet our high standards.’” Herring and House Democrats are planning to introduce legislation that will make it easier to decertify law enforcement officers who have “been found to lack integrity”, especially those who have repeatedly falsified, or failed to disclose, evidence.

Del. Jeff Bourne and Del. Jay Jones are considering legislation to reform sovereign immunity, which makes the state and localities legally immune from liability. This is a real can of worms, which I am not qualified to comment on. I will note that Steve Haner has several times noted on this post that any lifting of sovereign immunity will expose taxpayers to large costs.

An effort to pierce sovereign immunity is not new. The General Assembly did enact a limited waiver of the state’s liability protection in 1981. (See Sec. 8.01-195.1 et seq. of the Code of Virginia). This issue is related to the effort on the federal level to address the issue of qualified immunity, which protects a public official, such as a police officer, from personal liability in the performance of his official duties. The Supreme Court was considering several petitions on this issue, but announced today that it would not take them up.

School resource officers—Sen Ghzala Hashmi would like to stop contracting for police to be stationed in schools. I have expressed my concern before in this blog on the use of police in schools, not to protect the students against violence from the outside, but to administer discipline on the behalf of school officials, thereby criminalizing many teenage behaviors that should be dealt with administratively. This use of school resource officers has been documented elsewhere. As the RTD points out, however, eliminating funding for school resource officers would be a complete turnabout from the recent policy of the General Assembly. In its 2019 session, the legislature increased state funding for this program by 176%, from $1.7 million to $4.7 million annually.

Protection of police—The Senate GOP caucus will promote legislation to protect police officers who are assaulted during a state of emergency. It is not clear what such legislation would entail; Virginia law already provides for an enhanced penalty for assault of a law enforcement officer, as well as other public safety personnel. Perhaps the Senate Republicans are responding to the Democrats’ virtue signaling with some of their own.

None of these ideas are new; most are worthy. They are important and complex enough to deserve a special session in which the General Assembly can concentrate on them. But, most of them are complex enough that groundwork needs to be done, legislators educated, and alternatives and compromises considered before the entire General Assembly takes them up. Just throwing a bunch of bills at a special session that will meet for a few days is not the answer.

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