Reinstating parole. Expanding expungement. Boosting public defender pay. Ending police searches based on smell.
Newly elected Democratic majorities entered the 60-day legislative session in January with a wide range of criminal justice reform proposals — policies aimed at addressing racial disparities that have risen to the forefront following the death of George Floyd in Minneapolis.
With a handful of exceptions, few passed, with lawmakers instead promising to study some of the issues this year an eye to take them up when they reconvene in 2021.
The approach frustrated advocates and some legislators, who argued the state could have taken steps that would immediately addressed ongoing inequalities in courts, prisons and police departments. But Democratic leaders in the House of Delegates, where several of the proposals were tabled, said they simply needed more time to take on complex issues like reinstating parole, which the state abolished in 1995.
“When we do these things, I want them done right,” said Majority Leader Charniele Herring, D-Alexandria and chair of the House of Delegates committee that vetted the proposals. “I’m not a fan of sloppy.”
The debate played out during a hectic legislative session, during which Democrats took control of both chambers of the General Assembly for the first time in more than 20 years. Criminal justice bills largely took a back seat as the party raced to adopt legislation addressing a broad range of priorities that included gun control, Confederate statues, the Equal Rights Amendment and LGBTQ rights.
One high-profile exception was legislation that will decriminalize possession of an ounce or less of marijuana on July 1, reducing the penalty from a Class 1 misdemeanor to a $25 civil fine. But even that issue was contentious within the party and among advocates, who argued it will continue disproportionate enforcement in communities of color, albeit with a lesser penalty.
Some groups, including the ACLU of Virginia, called on lawmakers to legalize the drug. The proposal was received as a nonstarter, with limited support among Democrats, including Gov. Ralph Northam.
But advocates noted smaller steps that could have been included within the legislation were also rejected this year. One proposed amendment to the bill would have prohibited police from initiating searches based on the drug’s smell – something that’s still allowed under the version that passed and a police tactic some lawmakers said officers abuse, routinely claiming they smelled the drug where none is found.
“We had an opportunity in this last session to reduce the number of police contacts with citizens, especially black citizens,” said Brad Haywood, the chief public defender in Arlington and the executive director of Justice Forward, which advocated for change.
Lawmakers also voted against including language in the legislation that would allow people to have past convictions expunged, instead including language that prohibits employers from inquiring about past convictions.
Sen. Scott Surovell, D-Fairfax, argued it would have been easy to include and done more to prevent past convictions from blocking people from employment or even getting a TSA pre-check clearance.
Surovell also said that while he agreed parole is a complex issue that deserves an in-depth review, the state could have taken interim steps to loosen laws. He noted legislation allowing for compassionate release of terminally ill and incapacitated prisoners passed the Senate last year when it was under Republican control and again this year, only to die in a Democratic-controlled subcommittee in the House of Delegates.
Virginia currently has the second-most restrictive compassionate release policies for prisoners with terminal illness of any state in the country and is the only state that doesn’t allow for early release of inmates who are permanently incapacitated or have other complex health issues, according to a 2018 report by state auditors.
“I don’t know why we need to study that,” Surovell said. “It seems to me that simply allowing for parole of those who are terminally ill or permanently disabled is a pretty minor step.”
Smaller-scale reforms also failed, including legislation that would have required local governments to subsidize the salaries of public defenders at the same rate they subsidize local prosecutors offices. In Richmond, for instance, most public defenders make less money than a secretary who works in the prosecutor’s office because the city boosts state-funded prosecutor salaries but provides no funding to the attorneys who represent poor defendants, meaning they’re often represented by lawyers with less experience.
Unlike parole and expungement bills, the legislation passed in the House of Delegates but died in the Senate, where local government organizations opposed it as an unfunded mandate.
Herring said Tuesday she stands by the decision to delay interim action on parole reform and expungement, two issues lawmakers have referred to the Virginia State Crime Commission for study and policy recommendations.
In the case of parole reform, she said much of the structure that once existed to support inmates after their release has been dismantled and needs to be rebuilt. “I know some are upset,” she said, “But we need the infrastructure to support individuals to make sure they’re successful.” In the case of expungement, she said she believed the state needed to take a more holistic approach rather than grant people convicted of just one or two crimes the right to petition to have them removed from their records.
On both issues, she promised action in 2021. “Absolutely,” she said.
She said she also expects movement on an issue that received little attention during the 2020 legislative session: police misconduct.
She said it’s likely lawmakers will address the issue as early as this year when lawmakers reconvene to address emergency budget amendments prompted by the coronavirus pandemic.
Herring said she’s personally weighing proposals addressing police training on de-escalation and investigations on misconduct. On the latter topic, she said she’s considering filing a bill that would create state and regional boards to review complaints. “It would bring more integrity to the system if they are not investigating themselves,” she said.
Several other lawmakers offered their own legislative proposals Tuesday, including Sen. Ghazala Hashmi, D-Chesterfield, who said she’ll introduce bills banning the use of chokeholds by police and mandating the state-wide use of body cameras — an accountability tool lawmakers specifically blocked state police officers from rolling out because of the expense associated with reviewing the resulting footage.
Meanwhile Northam said that while he didn’t have any specific policies in mind he’d like lawmakers to pass, he will hold a virtual listening tour in the coming weeks. “We will bring that back to make policy,” he said. “It’s time to turn what we are listening to into action.”