From Our Executive Director: 2024 Legislative Session Executive Summary
We entered into the 2024 Virginia General Assembly Legislative Session with a carefully measured list of legislative proposals that we believed could restore a spirit of collaboration among Virginia lawmakers. Following the enactment and documented success of the many landmark reforms we advocated for, we believed Virginia lawmakers could be ready to reset and work together to heal, restore, and make our communities even safer, healthier, and more equitable. With the legislative session at a close and a special session scheduled to address the budget, we now know the outcome of all Justice Forward Virginia’s 2024 Legislative Priorities and present three major criminal justice reform takeaways from this session:
The critical reforms of 2020 and 2021 remain safe, though opponents have not given up on repeal.
This General Assembly passed some remarkable evidence-informed—and largely bipartisan—criminal justice reforms that would move Virginia in a positive direction.
Governor Youngkin has aligned himself with the harshest opponents of reform, vetoing all but the most obvious and universally accepted measures.
Critical reforms remain safe
We wish we did not have to keep saying so, but we have once again protected the tremendous progress Virginia made in 2020 and 2021. Our opponents introduced bills this session to roll back probation reform, repeal the ban on most pretextual policing, reinstate presumptions against bail—there was even a bill to bring back capital punishment. While we were uncertain about what the General Assembly composed of 40% new members would do, we are pleased that the legislature has protected these important reforms for a third year in a row. This achievement is worth celebrating, especially as we have seen tremendous progress upended in other states. In recent weeks, the Governor of Tennessee signed legislation ending the citywide ban on pretextual stops in Memphis—the same city where Tyre Nichols tragically died after a January 2023 traffic stop—and the Governor of Oregon signed legislation to reintroduce criminal penalties for drug possession.
In 2022 and 2023, all these repeal efforts died in the Senate Judiciary Committee but this year, both the House and Senate protected the important progress we made. Key reforms of pretextual policing, presumptions against bail, probation reform and yes, even abolition of the death penalty, remain safe with this General Assembly.
For the second straight year, we worked with our partners in the anti-surveillance coalition to stop Flock Safety and the Virginia State Police from expanding the use of automated license plate reader cameras (ALPRs) to every highway in the commonwealth. While the General Assembly did not follow our recommendation to require a warrant to access data from existing ALPRs, we drew a firm line in the sand because Virginians have indicated over and over again that they do not want this type of mass surveillance.
This General Assembly passed some remarkable evidence-informed—and largely bipartisan—criminal justice reforms
Before we get to the disappointment of Governor Youngkin’s vetoes, we must celebrate the tremendous legislation passed by this General Assembly. Of the 26 priority bills supported by Justice Forward Virginia this session, 18 passed both the House and Senate. Four were signed into law by the governor in the same form as they passed the General Assembly. Two other bills received recommendations from the governor, and the General Assembly accepted the recommendations.
Reforms signed into law
Court-appointed counsel compensation—HB 102 (Reaser) & SB 356 (Perry). These long overdue bills, which will increase compensation for private, court-appointed counsel, passed both the House and Senate unanimously. This hard-earned achievement is worth celebrating, as court-appointed lawyers represent 54% of all indigent people in Virginia’s criminal courts, yet are barely compensated for their work. The number of attorneys serving as court-appointed counsel in criminal cases in Virginia has declined 49% since 2020. Here’s what the legislation does:
Increases fee caps for misdemeanor cases from $120 to $330;
Creates a new class of offenses with a higher fee cap of $448 for four DUI misdemeanor offenses;
Increases fee caps for juvenile charges in district court from $120 to $680, with an additional $650 allowed for an offense that would be a felony if committed by an adult and punishable by more than 20 years in prison;
Increases fee caps for felony cases punishable by more than 20 years from $1,235 to $1,692. This cap will now include certain violent felony offenses not punishable by more than 20 years, such as manslaughter and malicious wounding.
Increases fee caps for other felony offenses from $445 to $834.
Limits recoupment by freezing the amount of attorney fee debt passed on to convicted defendants and children adjudicated delinquent at current levels, rather than requiring them to pay back the new, higher amounts paid to their attorneys.
The new court-appointed compensation law will take effect on January 1, 2025.
Fix first offender possession law (with governor’s recommendation)—SB 362 (Ebbin) & HB 452 (Callsen). The governor’s recommendation, which was accepted by the General Assembly, gutted our original proposal but still moved the law in a positive direction. Originally, our bill would have:
Allowed anyone who had not previously been convicted or received a deferred disposition on a felony drug charge to participate in the first offender program, giving them the opportunity to have their felony drug possession charge dismissed;
Eliminated the requirement that a person “remain drug and alcohol free” during probation (a change reflecting evidence-informed recovery practices);
Reduced the number of community service hours required from 100 to 24 (reflecting the difficulty community service hours impose particularly on indigent folks in recovery); and
Given judges the option to dispose of first offender cases as they see fit, such as by convicting a person who hasn’t completed all the requirements of a misdemeanor, instead of a felony.
Senate Courts struck provisions #2 and #3 from the bill, leaving the first and fourth provisions. That bill passed the General Assembly. In his recommendation, the governor eliminated provisions #1 and #4, and proposed a new substitute version that simply makes it possible for someone who has previously been convicted of marijuana possession or received a deferred disposition for marijuana possession to participate in the first offender program, now that marijuana possession is no longer a crime. This much narrower version of the legislation nonetheless reverses a bad Virginia Court of Appeals precedent that prevented someone charged with first-time felony drug possession from accessing the first-offender program because of a previous marijuana possession conviction or deferred dismissal.
Put guardrails on mass surveillance, surveillance technology reporting—HB 1496 (Rasoul). Law enforcement surveillance technology continues to proliferate. This legislation requires all state and local law enforcement agencies to provide a list of surveillance technologies they have procured to the Department of Criminal Justice Services annually. As originally proposed, the bill would have provided that any law enforcement agency failing to report a surveillance technology in use would have to cease using the technology until a state agency had an opportunity to study the technology.
Failure to appear in court for incarcerated individuals—HB 1114 (Simon). This legislation reverses some terrible appellate court cases, which have allowed courts to convict people for failure to appear in court when the person was being held in jail or at a detention facility. The legislation provides that a person who has been incarcerated or detained cannot be convicted of failure to appear. As originally proposed, our bill would have decriminalized failure to appear.
Governor Youngkin has aligned himself with the harshest opponents of reform
Reforms that passed the GA (and were vetoed)
Affirmative defense for assault on a protected person—HB 267 (Watts) & SB 357 (Boysko): We worked with autism and mental health advocates on legislation to establish an affirmative defense to the crime of assault on a protected person, such as law enforcement and correctional officers, for autistic people, people with mental illness, and people with neurocognitive disorders. The legislation passed the House with three Republican votes (and several Democrats voting no), and passed the Senate on party lines. Along the way, we listened to concerns of the Virginia Sheriffs Association and Virginia State Police, and both organizations removed their opposition before the final votes.
The governor’s veto message on our bill to provide more protections to people with autism and mental illness said the bill “reduces the protections afforded to law enforcement and erodes the Commonwealth Attorney’s discretion in evaluating cases,” and “sends the wrong message at precisely the wrong time.” Charging someone who cannot control their actions because of mental illness or a disability with a felony does not make law enforcement safer. Signing this long-awaited legislation into law would have sent exactly the right message to these vulnerable populations and their loved ones.
Reverse bad SCOVA expungement cases—HB 838 (Hope) & SB 504 (Surovell): This legislation would have expanded eligibility for expungement of non-conviction criminal records by reversing several bad decisions by the Virginia Supreme Court. The Senate bill also would have provided for court-appointed counsel in expungement cases, similar to the provision of court-appointed counsel in record sealing cases in the new sealing law that will take effect next year.
In his veto message, the governor said that this legislation “would allow individuals to avoid the full consequences of their actions by having more serious charges expunged from their record after being found guilty of a lesser offense.” The governor seems to understand what the bill does. By vetoing this legislation, this governor has made clear he does not believe in the presumption of innocence—a fundamental principle of the American criminal legal system.
Preserve probation reform, probation fixes—HB 1252 (McClure) & SB 505 (Subramanyam): These narrow bills would have reversed a bad 2023 Virginia Court of Appeals decision that effectively removes the cap on jail time for technical probation violations. The bill would also have ensured that people are not held for technical violations longer than their potential sentence. The House bill received 62 votes on its first trip to the floor.
The governor’s veto message on this common sense legislation can be described only as gobbledygook.
Eliminate 30-day limit to withdraw notice of jury sentencing—HB 63 (Simon): We introduced a bill to correct an issue that arose when we repealed mandatory jury sentencing in 2021. Current law requires an accused person requesting a jury trial to give 30 days’ notice when withdrawing that request. Because juries can also recommend sentences in Virginia, this substantially limits a defendant’s options at the sentencing phase. Our bill provided that an accused person could withdraw a request for a jury sentencing up until the beginning of the sentencing proceeding. The House amended the bill to allow either party in a criminal case to ask jurors about the potential range of sentences faced by the accused.
In this veto message, as with many others, the governor aligned himself with the objections raised by the Virginia Association of Commonwealth’s Attorneys, saying that letting jurors know the potential punishment of the crimes charged would endorse jury nullification. (If jurors think the punishments are too harsh, maybe the punishments are, in fact, too harsh.)
Robbery fixes—HB 77 (Watts): This bill was an extension of the 2021 reform to Virginia’s draconian robbery laws, also carried by Delegate Watts. This legislation would have applied those changes to various parts of Virginia law, such as earned sentence credits, parole eligibility, and sentencing guidelines.
The governor’s veto message recites talking points from Attorney General Jason Miyares. Unlike the governor and the attorney general, we believe earned sentence credits make our communities safer by incentivizing people to be on good behavior and prepare well for their reentry into society. Apparently the governor and the attorney general would rather these folks commit infractions right up until they are released?
Skinny defelonization of drug possession—HB 455 (Callsen): A recommendation of the Virginia Criminal Justice Conference, this skinny defel bill—a much more tailored approach than the defelonization bills we introduced in 2021 and 2022—would have allowed prosecutors to reduce felony drug possession to a misdemeanor if only the residue of the used drug is present (excluding fentanyl). Some prosecutors already do this in practice but others cannot because judges do not allow a plea to misdemeanor paraphernalia on a felony possession charge.
The governor’s veto message says the additional discretion given to prosecutors by this bill would “lead to inconsistent enforcement and legal confusion.” What the governor means, sadly, is that he believes wholeheartedly in the failed War on Drugs and will continue to demonize people with substance use in an effort to score political points.
Provide for juvenile expungement—HB 803 (Rasoul): This bill provided an opportunity to expunge juvenile court records for kids adjudicated of lower-level felonies in juvenile court. Originally designed as a narrow measure that would have allowed expungement only at age 29, the age when people who were adjudicated delinquent become eligible to possess a firearm, we compromised by excluding dozens of violent offenses to get prosecutors to drop their opposition.
The governor’s veto message says that by allowing expungement of youthful offenses at age 29, this bill “will negatively impact public safety.” The opposite, of course, is true—allowing someone the ability to move on from an offense committed when they were a child helps restore dignity and increases the likelihood that they will not reoffend.
Remedy for depriving accused people of preliminary hearings—SB 144 (Carroll Foy): Everyone arrested on a felony warrant has a right to a preliminary hearing to determine probable cause, yet over the years Virginia appellate courts have held that when prosecutors sidestep this requirement, people accused of crimes have no remedy to enforce this right. This bill would have provided a remedy, allowing the accused to get a preliminary hearing when prosecutors have circumvented it.
Once again, the governor’s veto message echoes the talking points of the Virginia Association of Commonwealth’s Attorneys, who acknowledged during session that they regularly engage in the practice of filing charges simply to hold people in jail, then skip the preliminary hearing to avoid having witnesses testify under oath—all while the accused person sits in jail.
Ban Fourth Amendment waivers—SB 334 (Salim): This legislation would have banned the unconscionable practice by many prosecutors and judges in the commonwealth of demanding that people who sign plea agreements prospectively give up their right against illegal searches and seizures for a period of years. The bill would also have banned prosecutors from having people waive their ability to seal or expunge their criminal records.
The governor’s veto message says a Fourth Amendment waiver “facilitates better reintegration into society.” Wrong. Fourth Amendment waivers allow unnecessary interactions between law enforcement and civilians, encourage police abuse, and give communities the impression that law enforcement do not follow the rules set forth by the Constitution.
Other priority legislation
In addition to the bills that passed both chambers, we were pleased that SJ 26 (Pekarsky), our study resolution to treat substance use as a public health issue rather than a criminal legal one, passed the Senate on a bipartisan vote, 22–18. Unfortunately both SJ 26 and its House companion, HJ 38 (Cousins), did not advance from House Rules. Study bills in general faced a difficult path this session, as the General Assembly tried to address concerns that too many study bills have taxed the resources of the organizations that produce the studies.
Our bill to repeal the ill-advised crime of organized retail theft was tabled in a House subcommittee to give the state “more time to study the issue.” Our Senate youth expungement bill, which would have gone even further than the House bill by prohibiting prosecutors from using criminal records after a period of time, also died in committee.
Conclusion
Virginia’s criminal legal reform movement returned in 2024, protecting the incredible progress we made in 2020 & 2021 and advancing dozens of bills through the General Assembly—only to watch the governor veto all but a handful of them. Nevertheless, there are several reasons to be optimistic about progress. First, new legislators from both parties showed a willingness to engage with us on these issues. That’s a change from previous sessions. Second, there are more organizations than ever advocating for reforms to the justice system than ever before. More of our criminal justice reform coalition partners held lobby days in 2024 than in any previous session since Justice Forward Virginia got started seven years ago. Finally, the clock is ticking on this governor. His successor will be chosen just over 18 months from now, as well as a new attorney general, lieutenant governor, and the entire House of Delegates.
Progress is rarely linear, but we continue to defy the odds by protecting the tremendous achievements we made, in spite of powerful opposition fighting to roll back our reforms. We will continue to protect that progress and find innovative ways to push Virginia’s criminal legal system into the 21st century. Justice Forward.
In Solidarity,
Rob Poggenklass
Executive Director
Justice Forward Virginia