Cheat sheet: Where Virginia Democrats agree on criminal justice reform and where they diverge

By: - August 18, 2020 12:01 am

Police guarded the Rotunda at UVA on Aug. 11, 2018, in Charlottesville, the anniversary weekend of the deadly white supremacist rally that left one dead and dozens injured. (Ned Oliver/Virginia Mercury)

Empowering civilian oversight of police. Creating statewide standards for law enforcement. Requiring officers to intervene when a colleague is using unlawful force.

Democrats, who have full control over the legislative process in Virginia for the first time in decades, are in broad agreement on a range of criminal justice reforms that will go before the General Assembly when it convenes for a special session Tuesday.

But there are also key differences in the legislative priorities put forward by Gov. Ralph Northam and the party’s leaders in the House and Senate

Here’s where the debate stands as lawmakers begin their work.

Where Democrats agree

Civilian oversight: Northam, the Senate and the House are all backing legislation that would allow localities to create civilian review boards with teeth — a layer of police oversight advocates have argued will improve relations between the police and the public by giving residents a voice in local departments.

As with most of the bills in question, the specifics still need to be hammered out, but leaders in both chambers have said they’ll back bills that will allow local governments to vest civilian review boards with the power to investigate complaints and serious incidents, subpoena witnesses and documents and issue binding disciplinary determinations, including the dismissal of officers, though police employees would be able to appeal any rulings through a local government’s existing grievance procedure.

Police chiefs have been split on the proposal while local sheriffs unanimously oppose the legislation, arguing that because they’re elected every four years, they’re already accountable to the public. It’s a point of disagreement lawmakers have not yet resolved.

An expanded decertification process: In Virginia, there’s a high bar for stripping police officers of their licenses to work in law enforcement. Currently, the state only decertifies officers who are convicted of a felony, certain misdemeanors or refuse a drug test. (And, as a Virginian-Pilot investigation revealed, even in some of those cases, officers remained certified.)

What those rules don’t cover is serious misconduct that doesn’t rise to the level of a crime or doesn’t yield a criminal conviction. On this point, police, sheriffs and lawmakers agree rules should be strengthened, and, in legislative hearings last month, police chiefs from around the state said they are troubled by the fact that officers they fired are often rehired elsewhere.

Still to be determined is who should be able to initiate a decertification hearing. The Virginia Association of Chiefs of Police wants to leave it up to leaders in local departments. Northam is backing a procedure that would allow the state to act with or without a local chief or sheriff’s approval.

Uniform standards and mandatory training: There are currently no statewide rules governing how police do their job. Instead, policies are set department by department.

Democratic lawmakers say that’s a problem for a lot of reasons, but most immediately because without a statewide standard for what constitutes serious misconduct by an officer, there can be no state-level decertification of officers for those offenses.

Democrats are united in proposing that the state’s Criminal Justices Services Board, which currently handles the state’s limited decertification process, develop a statewide set of policies for police agencies. They also propose expanding the board to include representatives of civil rights groups, giving them a say in the development of the new rules.

Expungement, prosecutorial discretion, no knock warrants: Democratic leaders in the House and Senate have also voiced support for legislation that would:

• Require police to get a judge (rather than just a magistrate) to sign off on any search warrant they plan to execute at night or without first knocking;

• Ban police from using choke and strangleholds;

• Strengthen prosecutors’ authority to dismiss charges they don’t want to pursue — a response to judges in some localities who have refused to allow local prosecutors to drop low-level drug charges;

• Require police officers to intervene when a colleague is using unlawful force;

• Stop police from obtaining surplus military equipment from the federal government;

• Create a system to send mental health professionals (rather than just police) to certain calls, dubbed the “Marcus Alert” after Marcus-David Peters, who was shot and killed by Richmond Police while experiencing a breakdown in 2018;

House of Delegates members walk past the south portico around 8:30pm at the end of the veto session at the Virginia State Capitol in Richmond, VA Wednesday, April 22, 2020. The House members were meeting outside in a tent instead of the House Chamber in order to practice social distancing due to the COVID-19 virus. (AP Photo/POOL, Bob Brown)

Where the House and Senate are at odds

Qualified immunity: Democratic leaders in the House say they plan to introduce legislation that would allow people who believe police violated their civil rights to sue officers in state court. Under a federal judicial precedent known as qualified immunity, such lawsuits are currently very difficult to win.

“I will say this: I do think that most of our police officers enter the profession with the goal of protecting the community,” said House Majority Leader Charniele Herring, D-Alexandria. “And I think most of them are absolutely outstanding in the work that they do. But I think that when there is a bad officer who does things like use excessive force, they cannot be protected from liability. I think it’s wrong to have that protection in.”

Lawmakers in the Senate have said they viewed the topic as too complex to address during an abbreviated special session, but are not necessarily opposed to the legislation, which has yet to be filed. “I’ve never said no,” said Sen. Scott Surovell, D-Fairfax. “My caucus has never said no. It’s just sort of been, ‘How?’”

‘Defelonizing’ assault on law enforcement: Democrats in the Senate say they’re backing legislation that would lessen the penalty for assaulting a police officer — a proposal that’s drawn especially fierce opposition among some in law enforcement and conservative politics.

Surovell, who is carrying the bill, notes that while the charge sounds serious, it’s most often filed in cases in which an officer wasn’t actually injured and, in some cases, wasn’t even touched. An oft-cited incident involves an onion ring hitting an officer. The Virginia Court of Appeals upheld another conviction in which a man pointed his fingers in the shape of a gun at an officer. He notes that in situations where an officer is injured, other, more severe charges already apply.

Democratic leaders in the House, who are up for reelection next year and have taken a more reserved approach to criminal justice reform than their counterparts in the Senate, have made clear they’re less interested in the hot-button proposal.

Limiting when and how cops use guns: Senate Democrats are also backing a package of legislation that would require police departments to follow a “use of force continuum,” requiring them to attempt to use de-escalation techniques and, in most cases, offer a warning before firing shots and doing so only when they’ve exhausted all other options.

Leaders in the Senate say they believe the rules are so important they deserve to be in the state code. But law enforcement groups have opposed the proposal, arguing they would put officers in danger. And leaders in the House say they think the specifics of how officers do their jobs are better left to the Criminal Justice Services Board as it develops statewide standards for officers. “We are legislators. We are not experts in those issues,” Herring, the House Majority Leader, said.

Sentencing reform and mandatory minimums: Finally, Senate Democrats have proposed eliminating all mandatory minimum sentences in the code and reforming the sentencing process during criminal trials. Advocates have called the latter proposal one of the most important criminal justice reforms the state could pursue.

Currently, if you’re accused of a crime and choose a jury trial, the jury is also responsible for sentencing if they find you guilty. Sen. Joe Morrissey, D-Richmond, says that in practice, that fact often disincentivizes defendants from pursuing jury trials because juries receive no guidance on how to arrive at a sentence and often mete out punishment far harsher than what a judge would typically hand down.

The Senate’s proposed reforms, which passed during the regular session earlier this year but died in the House, would give defendants the option of having a jury decide their guilt but then have a judge handle the sentencing portion of the trial — an option that exists in most other states.

The GOP position

Members of the minority party are accusing Democrats of being soft on crime and unfriendly to law enforcement.

That said, there are a handful of areas where they agree with Democrats. Senate Minority Leader Tommy Norment, R-James City, filed legislation banning chokeholds. And leaders in the House GOP caucus say they back expanding the reasons police officers can be decertified, collecting more data about arrests and creating a “duty to intervene.”

House Republicans said they also plan to file legislation expanding the use of body cameras, creating more stringent hiring standards for police and prohibiting police unions from negotiating changes to disciplinary procedures.

They say they also plan to file a slew of police friendly bills, including increased penalties for blocking streets, crossing police barricades and using weapons during riots.

“It’s evident from social media and what we see in the press that Democrats are going to push a number of items that will make it tougher for public safety professionals to do their job, create less safe communities, and add additional burdens to small businesses on top of what they did during the regular session,” said House Minority Leader Todd Gilbert, R-Shenandoah, during a press conference Tuesday.

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.