Every criminal justice reform that passed in Virginia after George Floyd’s death

By: - November 11, 2020 12:03 am

Police on Capitol Square at dawn stand alongside fencing set up to corral attendees of a large pro-gun rally in January. (Ned Oliver/Virginia Mercury)

Virginia lawmakers finalized a sprawling package of criminal justice reform bills this week as they gaveled out of a special legislative session that stretched nearly 12 weeks.

Prompted by the death of George Floyd in Minneapolis and the widespread outrage that followed, the hundreds of pages of legislation they adopted reflect years of pent-up demand for change among Democrats, who hold majorities in both chambers of the General Assembly for the first time in more than two decades.

The bills they passed touch every aspect of the state’s criminal justice system, from traffic stops to prison sentences.

Here’s what they do and when they go into effect:

Empowering civilian review boards with subpoena and disciplinary authority

Effective date: July 1, 2021

Cities and counties in Virginia have occasionally created advisory panels to offer local police chiefs input and advice, but those boards have been limited to an advisory role only, making them essentially toothless.

The General Assembly voted to change that, allowing local governments to create panels that can field citizen complaints, investigate them and issue binding disciplinary rulings. The legislation drew pushback from law enforcement groups and divided activists, some of whom favored legislation that would require all local governments to establish the panels. The legislation also exempts sheriffs, who argued that because they are elected, they are already subject to civilian review.

Banning police from executing no-knock search warrants

Effective date: March 1

Called Breonna’s Law after Breonna Taylor, who was shot and killed during a late-night raid in Louisville, the legislation makes Virginia just the third state in the country to bar police from executing warrants without first knocking and announcing themselves.

Law enforcement agencies were divided on the measure, with some arguing unannounced searches are important in limited circumstances to protect officers and evidence. Others said they didn’t use the tactic and considered it dangerous not to identify themselves as police.

Downgrading a handful of minor traffic violations to secondary offenses

Effective date: March 1

The bill is aimed curbing at what are often called pre-textual traffic stops — interactions motivated less by an officer’s concern about the offense at hand and more by a desire to investigate whether the people in the vehicle are committing other crimes. Supporters say they hope it will cut down on racial profiling. Opponents raised safety concerns, noting that as initially passed, it would have blocked officers from stopping a vehicle driving at night with no headlights.

The bill’s patrons called it an oversight and agreed to amendments proposed by Gov. Ralph Northam that allows stops only in cases where more than one headlight or brake light is out. Other violations the legislation downgrades to secondary offenses include: broken or loud exhaust system, tinted windows, objects dangling from a rearview mirror, smoking in a car with a minor present or a state inspection that is less than four months past its expiration date.

Prohibiting police from initiating searches based on the smell of marijuana

Effective date: March 1

This reform was rolled into the legislation limiting minor traffic stops. Smell-based searches for marijuana have been a subject of debate in Virginia since earlier this year, when lawmakers voted to downgrade possession of small amounts of marijuana to a civil infraction punishable by a $25 fine.

The searches, which are difficult to challenge after the fact due to ephemeral nature of odors, have faced growing scrutiny in legal circles and accusations that officers sometimes use it as an excuse to initiate a search where they wouldn’t otherwise have probable cause.

Reforming criminal sentencing to eliminate the ‘jury penalty’

Effective date: July 1, 2021

Virginia is one of just two states where if a case is heard by a jury, the jury must also hand down the sentence. The arrangement results in what trial lawyers call the “jury penalty” — in which people who exercise their constitutional right to a jury trial risk much steeper punishments if they are found guilty.

That’s because juries aren’t privy to sentencing guidelines, aren’t able to suspend time and, as a result, often hand down sentences far in excess of what a judge would recommend.

The legislation transfers sentencing authority to judges unless a defendant specifically requests it be set by the jury, which advocates predict will force prosecutors to offer more lenient plea bargains.

Creating Virginia’s first statewide code of conduct for police officers

Effective date: March 1, with new regulations due in December 2021.

In Virginia, law enforcement conduct is governed by rules and regulations adopted by individual departments around the state, and they can vary widely. The bill, which was backed by reform advocates and police groups, requires the state’s Criminal Justice Services Board to adopt statewide standards that, among other things, define serious misconduct.

And to stop what police chiefs said has been a common practice of officers resigning while under investigation and taking a job at another department, the new legislation requires local departments to notify the state of serious breaches, triggering a state-level decertification, which is currently limited to circumstances in which an officer has been found guilty of a crime.

Thousands of protesters march along Broad Street in Richmond, Va., June 2, 2020. Parker Michels-Boyce for the Virginia Mercury

Mandating racial bias, de-escalation and crisis intervention training for police

Effective date: March 1

The legislation also creates a standardized curriculum for police academies around the state and requires police officers to undergo a psychological evaluation before they can be hired. A companion bill expands the membership of the committee that will create the new standards to include representatives from minority, social justice and mental health organizations.

Creating mental-health crisis response teams to co-respond with police

Effective date: July 1, 2021

Named the Marcus Alert after a 24-year-old shot and killed by Richmond police during a mental health crisis in 2018, the bill establishes response teams around the state specialized in behavioral health issues.

It will be up to state criminal and mental health boards to develop protocols, but the legislation states the teams should divert individuals in crisis to health care services whenever feasible and “facilitate a specialized response by law enforcement when diversion is not feasible.” The legislation requires the first five regional teams be in place by December 2021.

Limiting when police can use chokeholds and requiring officers to intervene in excessive force

Effective date: March 1

The legislation says police can only use neck restraints when they are “immediately necessary to protect the law-enforcement officer or another person.” Police officers who violate the law would be subject to administrative decertification. What impact the legislation will have in practice is a subject of ongoing debate. Del. Jennifer Carroll Foy, D-Prince William, had pushed for a total ban and criminal penalties for violations. Sen. Scott Surovell, D-Fairfax, argued the legislation means police who use chokeholds inappropriately could face prosecution under the state’s strangulation statute.

A related bill requires officers to intervene if they see a colleague engaged in unlawful or excessive force and subjecting them to disciplinary sanctions if they don’t.

Since the pandemic began, hundreds of inmates at Deerfield Correctional Center had contracted COVID-19 and several died. The prison houses houses elderly and medically vulnerable inmates. (Virginia Department of Corrections)

Giving some inmates a chance to earn earlier release dates

Effective date: July 1, 2022

The legislation will let inmates cut their sentences by a third as long as they weren’t convicted of certain violent offenses, follow prison rules and participate in counseling and education programs. Prison officials estimate that it would move up the release dates of more than 14,000 inmates were it enacted today.

The measure was controversial, passing on a party-line vote and only winning support from a majority of Democrats after the patrons agreed to tack on a long list of exclusions. The delayed enactment clause — the longest attached to any measure that passed during the special session — is to give the prison system time to reconfigure their computer system.

A related bill also expands Virginia’s compassionate release policies, which had been among the most restrictive in the country. The new approach allows the parole board to consider releasing terminally ill inmates who doctors expect to die within 12 months. Like the earned sentence credit bill, the measure excludes most inmates convicted of violent offenses.

Imposing modest limits on military equipment available to law enforcement

Effective date: March 1

The language, included in an omnibus reform bill passed by the Senate, blocks departments from acquiring certain military equipment, including weaponized drones, combat aircraft, grenades and grenade launchers, mine-resistant armored vehicles, bayonets, tanks and .50 caliber or higher weaponry.

With the exception of the mine-resistant vehicles (MRAPS), which some departments say they use for standoff situations and rescues, law enforcement groups said they don’t expect the new rules to impact the way they do business. And if departments do decide they want the equipment in question, they can ask the state for a waiver.

Affirming that local prosecutors have the authority to dismiss whatever cases they want

Effective date: March 1

The bill is the General Assembly’s response to disputes that have emerged in recent years between reform-minded commonwealth’s attorneys and local judges, some of whom refused to go along with prosecutors’ policies of dismissing low-level marijuana crimes. Supporters say they consider it less a change to current law than a correction to the way some in the judiciary were interpreting it.

Making it a hate crime to make false 911 calls motivated by race or other bias

Effective date: March 1

Called the “CAREN Act” when a similar measure was adopted in San Francisco, it creates a harsher, felony penalty for people who lodge false complaints with the police that are motivated by bias stemming from race, religious conviction, gender, disability, gender identity, sexual orientation, color or national origin.

Authorizing the attorney general to investigate local police departments

Effective date: March 1

The legislation’s patron, Sen. Louise Lucas, D-Portsmouth, said the bill was inspired by the U.S. Department of Justice’s refusal to initiate a “pattern or practice” investigation into charges of discrimination in the Portsmouth Police Department, where the state’s first black female police chief said she was forced to resign because “some quite frankly did not like taking direction from an African American female.”

Authorizing the state to inspect ICE detention facilities in Virginia

Effective date: March 1

Inspired by a deadly and poorly contained coronavirus outbreak at an ICE-contracted facility in Farmville, the legislation subjects the detention centers to the same standards and health requirements as other local jails. It will also allow the state to investigate detainee deaths.

Banning police officers from having sex with detainees

Effective date: March 1

The new legislation, which won unanimous support, makes Virginia one of at least a dozen states to pass or tighten laws governing sexual relations between police and arrestees after an 18-year-old woman in New York City alleged she was raped by two on duty police officers, who insisted she consented despite being handcuffed in the back of a police van.

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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.