2024 Priorities

Over the past few years, Virginia emerged from the Stone Ages of criminal justice as a result of smart, contemporary, humane, evidence-informed legislation that promotes public safety while minimizing harm to vulnerable people and communities. Although the politics of crime have stymied further progress to some extent, the fact is the reforms Virginia passed since 2020 are popular—largely because they’re working. As the political utility of crime alarmism continues to fade, Virginia lawmakers should be ready to reset and work together to heal, restore, and make our communities even safer, healthier and more equitable. Below is a list of legislative proposals that we believe could restore a spirit of collaboration during the 2024 legislative session.

1) Treat Substance Use as a Public Health Issue–Not a Criminal Legal One: SJ 26 (Pekarsky) and HJ 38 (Cousins)—Study; JLARC; scope and cost of penalizing possession of drugs as a felony. Possession of most drugs of abuse is a felony in Virginia. That means prison time, forfeiture of civil rights, and loss of employment, housing, and other basic necessities of life. This approach dates back to the late 1960s, and it has never worked. The criminal justice system harms people who suffer from substance use disorders. It  destabilizes their families and communities. Substance use is a public health issue, and Virginia should treat it accordingly. Treating drug use as a criminal legal issue didn’t work when the threat was crack cocaine, it did not work against heroin, and it isn’t working against the fentanyl crisis. We are asking the General Assembly to direct the Joint Legislative Audit and Review Commission (JLARC) to provide much needed data on these issues, as we seek a better path forward—one that favors liberty, equity, treatment and wellness over arrest and incarceration.

2) Amend Assault on Law Enforcement: SB 357 (Boysko)—Assault and battery of a law-enforcement officer; penalty and HB 267 (Watts)—Arrest/prosecution of individual experiencing mental health emerg.; assault against law enforcement. According to the Virginia State Police, most charges of assault on a law enforcement officer do not actually result in any injury to the officer. The most trivial physical contact with a law enforcement officer—or no contact at all—can result in felony charges: brushing up against an officer’s shoulder in a crowd, splashing water onto an officer’s arm, pulling away while being handcuffed, or even raising one’s fists when an officer is nearby. But every one of these offenses are punishable by up to five years in prison, with a mandatory minimum term of six months. The statute gives law enforcement extraordinary power to punish those who insult or defy them. This power is often directed at people of color, juveniles, and individuals with mental health disorders or intellectual or developmental disabilities. Amending the felony assault on law enforcement statute improves public safety by removing vulnerable people from our criminal justice system who do not belong there.

3) Ban Plea Bargain Waivers: SB 334 (Salim)—Plea agreements; prohibited provisions. In Virginia, some prosecutors are forcing people to give up their Fourth Amendment rights when they enter into plea agreements. These plea bargain waivers permit law enforcement officers to stop and search individuals at any time for any reason. In Richmond, police records show 96% of those subject to Fourth Amendment plea waivers are people of color. We must ban this unconscionable and racist practice.

4) Increase Compensation for Court Appointed Counsel: ​​SB 356 (Perry)—Compensation of court-appointed counsel and HB 102 (Reaser)—Court-appointed counsel; raises the limitation of fees. Court-appointed attorneys represent people charged with criminal offenses who cannot afford attorneys and where there is not a public defender's office, or the public defender has a conflict. There are a number of areas of Virginia that do not have public defender offices, and the majority of individuals charged with criminal offenses in Virginia are represented by either court-appointed attorneys or public defenders. Yet Virginia has the lowest court-appointed attorney rate in the country for misdemeanor and felony offenses. The rate for court-appointed attorneys has not been raised by the General Assembly in nearly 25 years. The Commonwealth of Virginia essentially asks court-appointed attorneys to volunteer to represent people accused of crimes. The result is that fewer and fewer attorneys are willing to take court-appointed cases, resulting in some of the most vulnerable in our criminal system receiving ineffective, overburdened, or inexperienced counsel. Court-appointed attorneys deserve to be compensated fairly, just as these accused individuals deserve competent and experienced representation. We must fund all aspects of the criminal system fairly. Raising court-appointed rates is a straightforward action towards this goal.

5) Provide for Juvenile Expungement: SB 482 (Aird)—Expungement and sealing of juvenile court records and HB 803 (Rasoul)—Expungement of juvenile court records. For kids who are found guilty of felonies, there is no path to getting their records sealed or expunged. If these same children were to end up in adult court at some point, their juvenile records are used against them in deciding bail, charging decisions, plea deals, and ultimately their adult sentences. In one heinous example, if a child is found delinquent of robbery, the sentencing guidelines for an adult offense can increase by 300%. This is a significant problem. Virginia made a conscious decision to establish an entirely separate court system for kids, a process that operates under the premise that children are different than adults. In 2021, the General Assembly enacted legislation that allowed the sealing of adult convictions, including low-level felonies, and established a system of automatic sealing of police and court records for a handful of misdemeanor offenses. However, juvenile expungement laws remain overdue for improvements. An act committed when someone is not fully mature should not be a scarlet letter for the future. The status quo creates barriers to success and counters the very premise of which our juvenile court system was created. Virginia should provide for expungement of youth felony adjudications.

6) Put Guardrails on Mass Surveillance: SB 539 (Bagby) and HB 920 (Shin)—License plate readers; penalties. As well as SB 695 (Peake) and HB 1496 (Rasoul)—Surveillance Technology Registry; created. The increasing unregulated and unmonitored use of mass surveillance technology by law enforcement infringes on fundamental privacy rights and risks further exacerbating mass incarceration and racial disparities in the criminal legal system. We implore members of the General Assembly to put strict guardrails on the use of mass surveillance technology statewide, including automated license plate readers (ALPRs).

7) Require Jury Commissioners to ask Potential Jurors Their Race and Gender: The code provides for different methods of identifying people who can be on a jury panel. As it stands, there is some information that has to be collected (name, address, occupation, etc.) but they don’t ask race, gender, or ethnicity. This is bad because people are entitled to a jury of their peers. Those impacted by the criminal legal system are disproportionately Black and Brown, yet oftentimes the juries who stand in judgment of them are completely White. This fix will help us understand if jurors do reflect an appropriate cross section of the community.

8) Remedy for Depriving Accused People of Preliminary Hearings: SB 144 (Carroll Foy)—Nolle prosequi or dismissal without prejudice prior to preliminary hearing; subsequent indictment. The Virginia General Assembly believed preliminary hearings to be so important, it codified a "right" to a preliminary hearing in the district courts. Over the years, however, a massive loophole emerged which has rendered the “right” meaningless. All a prosecutor needs to do is drop the case in the district court, then re-charge in the circuit court—where there is no mechanism for conducting a preliminary hearing. Just like that, a “right” has become an “option.” This bill closes the loophole in order to achieve the intent of the legislature.

9) Reverse Bad SCOVA Expungement Cases: SB 504 (Surovell) and HB 838 (Hope)—Expungement of police and court records. Defendants are often overcharged, and plead to lesser charges to avoid extreme sentencing and the disastrous consequences of a felony conviction. Shockingly, because of a series of cases decided by the Supreme Court of Virginia, a person charged with a felony offense, who pleads guilty to a misdemeanor, cannot get their arrest record expunged, regardless of their innocence of the original charge. People should always be able to expunge criminal charges they weren’t convicted of.

10) Repeal Organized Retail Theft: HB 209 (Martinez)—Organized retail theft; repeals crime and Organized Retail Crime Fund. In 2023, the Virginia General Assembly created a new crime punishable by decades in prison to address a mythical moral panic known as organized retail theft. This repeal isn’t about retail theft—it’s about the politics of crime. When we know we’ve been tricked, we need to correct the mistakes that have been made. The passing of the organized retail theft bill last year is what happens when lawmakers allow themselves to become victims of crime wave hysteria.

Other Legislation

  • Eliminate 30-day Limit to Withdraw Notice of Jury Sentencing: HB 63 (Simon)—Criminal cases; request for a jury to ascertain punishment.

  • Fix First Offender Possession Law: SB 362 (Ebbin)—First-time drug offenders and HB 452 (Callsen)—First offender drug program; previous misdemeanor marijuana conviction. 

  • Decriminalize Failures to Appear: SB 643 (Aird, Deeds)—Penalties for failure to appear; contempt and HB 1114 (Simon)—Failure to appear; penalties.

  • Provide Supports for Getting to Court