Thousands of protesters gather at the Robert E. Lee Monument for a peaceful rally in Richmond, Va., June 2, 2020. Parker Michels-Boyce for the Virginia Mercury
As the General Assembly reconvenes this week, Virginia Democrats are continuing a push to reform the state’s criminal justice system that began last year amid widespread social unrest.
The effort during a special legislative session culminated in November with the passage of a slate of laws that empowered civilian oversight of police, banned no-knock search warrants and reformed a 224-year-old criminal sentencing statute.
Advocates and lawmakers say that was just the start of the conversation.
“They basically got us out of the ice age of criminal justice and into the Stone Age,” said Brad Haywood, a public defender and leader with Justice Forward, the group behind criminal sentencing reforms adopted last year. “But we’re still in the Stone Age, so that means we have a long way to go,” he told a panel earlier this week.
Legislation to legalize marijuana, expand expungement and repeal mandatory minimum sentences are expected to dominate debate in legislative committees focused on police and courts. But lawmakers are also pursuing bills that would end private management of prisons, abolish the death penalty and repeal felony penalties for drug possession, among others.
House Democrats say one of their top priorities is a hold over from the special session that hit a dead end in the Senate — legislation allowing the automatic expungement of many criminal convictions.
Supporters say lingering criminal records too often pose barriers to employment and housing, making it hard for people to rebuild their lives. The Charlottesville-based Legal Aid Justice Center says they’ve worked with clients who have been turned down for apartments by landlords who cited past charges for which the applicant was never convicted.
“This bill will give people a clean slate,” said House Majority Leader Charniele Herring, D-Alexandria, who proposed the legislation. “If someone has turned their life around, they deserve a clean record.”
As proposed last year, Herring’s legislation would direct the state court system to automatically seal records for about 170 misdemeanor and felony offenses eight years after they complete their sentences, provided they don’t reoffend. Charges that don’t result in convictions would be automatically expunged soon after the case concludes.
Advocates call Virginia’s expungement laws some of the most restrictive in the country, noting the state is one of just seven that does not allow any criminal convictions to be expunged. Currently, defendants can only have charges for which they were not convicted removed from their records, and only if they file a petition with their local court and convince a judge to sign off.
The State Crime Commission endorsed the measure last year, but it was never seriously debated in the Senate, where Democrats said they opposed automating the process — an approach adopted by just a handful of states, including Pennsylvania and Michigan.
“If there’s anything the last 30 decades of criminal justice reform has taught us, it’s that automatic anything doesn’t work — or can be extremely dangerous,” said Sen. Scott Surovell, D-Fairfax. He also questioned how the Crime Commission, on which he sits, and House Democrats arrived at their list of 170 offenses that would be eligible. “There does not appear to be any policy rationale.”
Surovell says he plans to put forward legislation that expands expungement to a range of criminal convictions — likely Class 5 felonies or below with exceptions for crimes like DUI — but maintains requirements for individuals to initiate the process by petitioning the court in which they were convicted.
He acknowledged that the time and expense associated with individual petitions would pose a burden to some defendants, but argued his approach would open many more charges to potential expungement while providing a case-by-case review.
“The big picture is that the Senate supports a remedy that would give relief to tens of thousands more people in many more potential situations, but would require a petition and going in front of a judge,” he said.
Gov. Ralph Northam hasn’t weighed in on either approach but included $13 million in his proposed budget to cover the expected cost of establishing the programs.
Republican lawmakers have shown little appetite for either approach, though GOP lawmakers in the Senate have in the past supported far narrower bills limited to infractions for alcohol and drug possession by young people.
Last year, lawmakers decriminalized marijuana, reducing penalties for possessing small amounts of the drug to a $25 civil fine. But at the time, most Democratic leaders said they weren’t ready to begin seriously discussing legalizing recreational use of the drug.
That changed this year as the state completed two major studies of what a legal marketplace might look like in Virginia and Northam endorsed the concept, saying he’ll propose legislation that would establish a retail marketplace over the next two years.
Proponents have emphasized racial justice, noting Black Virginians have for decades born the brunt of enforcement, and Northam said he plans to put forward a bill that would seal records of past convictions and give minority communities harmed by past enforcement a leg up in the marketplace.
While lawmakers in the House say they believe they have the votes to pass the legislation, leaders in the Senate were more circumspect, giving it 50-50 odds. One Democratic senator, Chap Petersen, D-Fairfax City, put out a statement chastising his colleagues for making marijuana a focus of the legislative session in the midst of a pandemic that has shuttered schools.
The Northam-backed legislation has not yet been filed and the details are expected to generate significant debate. In the Senate, lawmakers are expected to establish a subcommittee dedicated exclusively to the topic.
Heading into the special session, the State Crime Commission endorsed legislation that would eliminate all mandatory minimum sentences from the state code — a sweeping proposal that supporters say would restore sentencing discretion to judges and juries and end what one group of prosecutors called “irrationally lengthy prison sentences that fuel mass incarceration.”
Most of the mandatory minimum sentences on the books in Virginia address driving while intoxicated, narcotics, child pornography and weapon violations, according to the research undertaken by the Crime Commission, though researchers said the offenses make up a relatively small proportion of convictions in any given year, accounting for just 3 percent of convictions in the past five years.
The Crime Commission said studies about the effectiveness of mandatory minimums, most of which were adopted as part of tough-on-crime legislation that swept statehouses in the ‘80s and ‘90s, are inconclusive.
Republicans have assailed the proposals as “by far the most egregious ‘soft on crime’ proposal yet in the Democrats’ attempts to make life easier on criminals.”
The death penalty
Lawmakers in Virginia have debated the death penalty off and on for years, but even under Democratic control a repeal failed to make it to a full vote before the House or Senate, dying in committee or never getting a hearing.
Lawmakers agreed to revisit the issue, which remains timely with two people on death row, this year. As in years past, a repeal has strong support from faith leaders around the state.
Legislation patroned by Del. Jay Jones, D-Norfolk, in the House and Surovell in the Senate would change the sentences of the two people currently awaiting execution to life imprisonment with no possibility of parole.
“The commonwealth shouldn’t be in the business of killing its citizens, plain and simple, and it is time we meet the moment and end this despicable practice once and for all,” Jones said in a statement.
Virginia has just one private prison — Lawrenceville Correctional Center in Brunswick County — which opened in the late ‘90s as part of a pilot program.
Sen. Adam Ebbin, D-Alexandria, is pushing to bring its operation back under state control. At Ebbin’s request, last year lawmakers asked the Department of Corrections to study the cost of assuming state control over the facility.
Prison officials reported last month that it would likely cost the state $9.3 million more per year to operate the facility than it is currently paying GEO Group, largely because the state pays its correctional officers and other prison staff more than the private contractor.
With the finding in hand, Ebbin has filed legislation that would prohibit the state from contracting out prison management, effectively ending the relationship with GEO.
“Putting cost cutting above all else can be antithetical to the pursuit of justice,” Ebbin said, saying staff at the prison are overworked and underpaid. “At the end of the day, studies show that Virginia is sacrificing basic standards of care at the expense of humane incarceration.”
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Felony penalties for drug possession
Some lawmakers are also pursuing legislation they hope will eventually lead the state to reduce penalties for drug possession beyond marijuana, arguing the criminal records they create impose burdens that only make recovery from addiction more difficult.
Del. Sally Hudson, D-Charlottesville, filed a bill that asks the Crime Commission to study the effectiveness and alternatives to the state’s criminal rules governing possession of drugs like heroin, methamphetamine and cocaine.
“Nothing about the way we’re approaching drug convictions (is) rooted in medical science,” Hudson said during a forum this week hosted by Justice Forward. “If you’ve got a felony conviction on your record, there’s a whole suite of career options that are now closed to you.”
Facial recognition, body camera footage and probation violations
Democratic lawmakers have also filed bills that would:
- Require local governments to sign off on the use of facial recognition technology by law enforcement. (HB 2031, authored by Del. Lashrecse Aird, D-Petersburg)
- Begin tracking data about how bail and other forms of pre-trial supervision and detention are used. (HB 1945, authored by Del. Clint Jenkins, D-Chesapeake.)
- Impose limits on when and for how long people can be put back in prison for technical probation violations. (HB 2038, authored by Del. Don Scott, D-Portsmouth)
- Require police departments to release video or audio recordings that capture officers discharging firearms, stun guns or chemical weapons. (HB 1941, authored by Del. Sam Rasoul, D-Roanoke.)
Meanwhile, GOP lawmakers, who have largely opposed reforms enacted to date by Democrats, have filed legislation that would roll back limits on police stops advocates say lead to racial profiling. They’ve also brought back legislation filed last year aimed at increasing transparency of the state’s parole board and strengthening victim notification requirements.
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