Virginia lawmakers are moving to eliminate mandatory minimums, but they’re at odds over which ones

By: - February 9, 2021 12:02 am

A police officer walks into the John Marshall Courthouse in downtown Richmond. (Photo by Ned Oliver/Virginia Mercury)

Lawmakers in Virginia are moving forward with legislation to repeal a slew of mandatory minimum sentences, but the House and Senate are at odds over how far to go.

A bill passed by the Senate would scrap mandatory sentences for nearly all crimes on the books. The House, meanwhile, advanced legislation that focuses on drug offenses but preserves mandatory penalties for violent crimes and sex offenses.

“From the Senate’s perspective, it needs to be all mandatory minimums or none,” said Sen. Scott Surovell, D-Fairfax. “It seems to me that if you think mandatory minimums are a bad policy, you get rid of all mandatory minimums.”

There are more than 200 mandatory minimum sentences attached to criminal offenses in Virginia that address crimes ranging from drunken driving to child rape. Many of the penalties were adopted the late 1990s as part of a tough-on-crime movement, which Democratic lawmakers now fault for filling jails and prisons without doing much to deter crimes.

Gov. Ralph Northam said in 2019 he would veto any legislation that creates new mandatory minimum sentences.

The Senate’s proposal to repeal all mandatory minimums is in line with a recommendation made by the Virginia Crime Commission in January. A study by the commission’s staff concluded research on whether mandatory minimums reduce crime is inconclusive, but found Black people in Virginia are more likely than White people to be imprisoned on convictions that carry mandatory penalties.

The only mandatory minimum sentence the Senate version preserves is a life sentence for capital murder of a police officer — something law enforcement groups argued vigorously to preserve.

Lawmakers in the House said they decided to focus on drug crimes because they are responsible for more mandatory minimum sentences in state prisons than any other category of offense. The Crime Commission found that 489 inmates were serving sentences solely for a drug distribution crime with an attached mandatory minimum. The second highest number of convictions that led to mandatory minimum sentences were for habitually driving without a license, which the House’s version of the bill also eliminates.

“We can’t incarcerate our way out of addiction,” said Del. Mike Mullin, D-Newport News, who carried the legislation in the House. “My thought was to focus first and foremost on dismantling the incarceration apparatus around the war on drugs.”

In committee hearings, Republican lawmakers who opposed the legislation zeroed in on the elimination of mandatory two- and five-year sentences for selling drugs to minors.

“These are not possession crimes,” said Del. Rob Bell, R-Albemarle. “These are people who deal the drugs that set up the addiction that we then have so much trouble getting people out of.”

Supporters of the legislation countered that the law wouldn’t change the 10 to 50 year sentencing guidelines attached to the offense, which statistics show judges typically follow. Instead, they said it would allow judges and juries to weigh the severity of charges on a case-by-case basis. “We still have heavy and harsh sentences,” Mullin said.

The argument followed a similar trajectory in the Senate, but GOP lawmakers focused on the elimination of mandatory minimums attached to driving under the influence charges, which the House preserves.

“So this would eliminate mandatory minimums for someone who committed three DUIs,” asked Sen. Ryan McDougle, R-Hanover. “This is really concerning.”

Sen. John Edwards, D-Roanoke, who is carrying the bill in the Senate, responded that it wouldn’t necessarily mean reduced sentences.

“That’s why we have judges,” he said. “To look at the nature and extent of the crime and the nature and history of the defendant.”

The House and Senate versions also differ in that the House allows people serving prison sentences related to mandatory minimums to petition for a resentencing hearing. The Senate version does not include resentencing provisions, but proposes studying the issue.

The legislation drew support in both chambers from both criminal justice reform advocates and groups that support crime victims. They argued that substance abuse issues be treated as public health issues and that mandatory minimums attached to domestic violence offenses like violating a protective order can in some cases strain both victims and offenders.

“We acknowledge both victims and their offenders suffer if a broken process violates their fundamental right to justice,” said Catherine Ford, who represents the Virginia Victim Assistance Network. “This legislation is carefully balanced with crime victims’ concerns and smart criminal justice reform.”

Disagreement between the House and Senate, especially on criminal justice-related bills, is common, though in the past it’s more often been the House pushing to go further on legislation than the Senate. Mullin said he was optimistic the House and Senate would reach an agreement. “I know we’re going to come out with a bill that everyone in the House and Senate are going to be excited to see pass into law.”

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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.