Summary of Supported Legislation
For the 2020 session of the General Assembly, Justice Forward Virginia has helped draft a series of bills that aims to address the “Trial Penalty” in Virginia. The Trial Penalty is the phenomenon that occurs when the government makes losing a trial such a frightening proposition—through the way they charge and prosecute the case—that any reasonable person would accept a plea bargain. Essentially, it is the power of the government to threaten harsh consequences if a defendant asserts the right to trial. The Trial Penalty is the reason 95% of felony convictions are now obtained via guilty plea, a figure nearly 20% greater than just a few decades ago. Before the 1960s, between one-fourth and one-third of state felony charges led to a trial; today, just 1 in 20 do.
The Trial Penalty is what drives mass incarceration. It is also a core concern of prosecutorial reformers, who acknowledge that the legislature has given prosecutors such overwhelming power, they can virtually dictate the outcomes of cases through overcharging, mandatory minimums, exploiting unfair sentencing procedures and the like.
Below is a list of bills deemed of high importance to Justice Forward Virginia. These bills will significantly reform processes in the criminal justice system to address the Trial Penalty, open up discovery, and eliminate cash bail. Following this list will be a list of additional bill priorities that address other areas of the criminal justice system.
Ending the Trial Penalty
Voir Dire Examination Reform
HB 100 - J. Lindsey - Status: Passed House of Delegates
SB 325 - C. Deeds - Status: Awaiting Hearing in Judiciary Committee
Virginia is one of only six states where juries determine guilt/innocence and sentence. It is the only one that does not give jurors the right to know what sentence they’ll have to impose if they convict - even if there are lengthy minimums involved. Allowing parties to tell the jury the truth about sentencing ensures a fair and impartial jury for both the guilt and sentencing phases of the trial. It also prevents mistrials at sentencing if a juror cannot consider the applicable range of punishment.
Sentencing Reform for Jury Trials
HB 279 - P. Hope - Status: DEAD
SB 326 - C. Deeds - Status: Awaiting Hearing in Judiciary Committee
Our juries lack power to suspend prison time or recommend alternatives to prison (probation, drug treatment, etc.). They aren’t allowed to see sentencing guidelines or learn local sentencing customs. They’re simply told to impose incarceration, without being given information necessary to impose it fairly. This bill will allow juries to recommend leniency in sentencing, giving them the tools to seek justice, not just convictions.
Allow Defendants to Request Expert Funding Without Disclosing Strategy
HB 824 - P. Hope - Status: Awaiting Hearing in Criminal Subcommittee
SB 806 - J. Morrissey - Status: Awaiting Hearing in Criminal Law Subcommittee
Currently the Commonwealth or wealthy criminal defendants can pay for their own experts and not tell the other side anything about what they are doing. Poor defendants, however, must go to court and argue publicly for expert funds in front of the very party that is their adversary at trial. To obtain the funds they must state, in open court, their particularized need for the expert. In doing so, they often must reveal their trial strategy, and the Commonwealth can object to the request. This bill still requires the defendant to state his particularized need, but allows him to do so before the judge only—without informing his opponent of his trial strategy. This puts poor people on the same footing as richer defendants and the Commonwealth.
Degrees of Robbery
HB 871 - J. Bourne - Status: DEAD
SB 805 - J. Morrissey - Status: Awaiting Hearing in Criminal Law Subcommittee
In Virginia, de minimis conduct can be and often is charged as robbery. For example, a bully who pushes a younger student and steals lunch money has committed robbery, the same as someone who brutally pistol whips someone with a loaded firearm and steals expensive jewelry. Despite covering a broad range of conduct, Virginia has only one punishment for robbery: 5 years to life in prison. This bill eliminates the 5-year “jury minimum” and makes the maximum penalty dependent on the seriousness of the offense.
Stop Rewarding Prosecutors for Overcharging
HB 1035 - M. Simon - Status: Awaiting Subcommittee Referral
SB 803 - J. Morrissey - Status: Awaiting Hearing in Criminal Law Subcommittee
In Virginia, state funding for individual Commonwealth’s Attorneys is determined in large part by the frequency with which each office charges felony offenses and obtains felony convictions. This bill will change the funding structure for Commonwealth’s Attorneys’ offices to reflect more objective crime or population data.
Study on Mandatory Minimums
HJ 48 - P. Hope - Status: DEAD
SJ 34 - S. Surovell - Status: DEAD
This study will direct the Virginia State Crime Commission to look into the use and effectiveness of mandatory minimum sentences.
Open Discovery
Establishes Requirements and Procedures for Discovery
HB 873 - J. Bourne - Status: Awaiting Subcommittee Referral
SB 775 - J. Edwards - Status: Awaiting Hearing in Criminal Law Subcommittee
Virginia remains one of only 9 states with so-called “closed discovery” rules, where a defendant has no right to witness statements, witness lists, or even the police reports from his own criminal case. Restrictive discovery rules discourage defendants from exercising their right to trial by requiring them to “fly blind,” without the benefit of information critical to the preparation of a defense. In 2017, the Virginia Senate passed—by a vote of 39-1—broad reforms to the discovery process that would have brought us into line with states with true “open discovery” practices, but this was not passed by the House. The General Assembly should implement these much-needed reforms and end “trial by ambush” once and for all.
Duty to Provide Discovery
HB 1153 - A. Lopez - Status: Awaiting Subcommittee Referral
This bill requires that the Commonwealth’s Attorney to permit the accused to inspect, copy, and photograph any relevant statements or confessions relating to the case, scientific reports about evidence, any documents or items in possession of the Commonwealth, police reports, and statements from non-expert witnesses.
Ending Unnecessary Pretrial Detention
Requires Appointment of Counsel for the Accused in Bail Hearings
HB 820 - D. Scott - Status: Passed Courts of Justice Committee, Awaiting Hearing by Appropriations Committee
Changes various parts of the statute so that the accused in a criminal case have adequate legal counsel during the critical first hearing in front of judge. This will allow those who may otherwise be detained pretrial on cash bail, have the support they need so they don’t fall into a cycle of recidivism later in life.
Pretrial Data Collection
HB 922 - J. Carroll Foy - Status: Awaiting Subcommittee Referral
SB 723 - J. McClellan - Status: Awaiting Subcommittee Referral
Believe it or not, there is no statewide mechanism for data collection when it comes to pretrial detention. In identifying the extent of the problems associated with cash bail, this bill will direct the Department of Criminal Justice Services to collect data, create a uniform reporting system, and release an annual report to the General Assembly, Governor and the public regarding statewide usage of bail.
Limits Prosecution’s Power to Hold Someone Indefinitely
HB 1461 - D. Scott - Status: Awaiting Hearing in Criminal Subcommittee
Currently, prosecutors who lose a case can order a bail motion that can detain a defendant until the case has been successfully appealed to a higher court. This can be, and often is, abused by tough-on-crime prosecutors who see winning a case as being paramount to seeking justice. This bill limits the court’s ability to stay the execution of a bail order to a maximum of three days.
Presumption of Bail
HB 1462 - D. Scott - Status: Passed Criminal Subcommittee, Awaiting Hearing by Courts of Justice Committee
In a criminal case, the prosecution must make their case for why the defendant should be found guilty. Innocent until proven guilty is a central tenet of our criminal legal system, so why is the presumption that the accused must make a case for their freedom pretrial? This bill will remove this presumption and instead require the prosecution to make the case during the bail hearing for why the accused should be held pretrial on cash bail.
Other Priority Areas
Authority to Defer or Dismiss a Case
SB 489 - S. Surovell - Status: Awaiting Hearing in Criminal Law Subcommittee
The duty of the prosecution is to determine what to prosecute; the duty of the judge is to judge. This is a foundational truth of the criminal justice system. However, in Virginia, judges who personally disagree with the Commonwealth’s Attorney on trial strategy can usurp the power of the elected CA and prosecute a case themselves. SB 489 gives sole power of prosecution to the CA, allowing these officials to “nolle pros,” or move to dismiss, a case, and with agreement by the prosecution and defense, the case will be dismissed.
Ending the Use of Mandatory Minimum Sentences
SB 537 - J. Edwards - Status: Awaiting Subcommittee Referral
Virginia prosecutors have roughly 230 different ways to charge a crime that would result in a mandatory sentence after trial, covering about 70 types of offenses. When facing the prospect of decades of mandatory time, a five-year plea bargain can look awfully appealing—even to defendants who are factually innocent. This bill will end the application of mandatory minimum sentences.
Can you help Justice Forward pass these important pieces of legislation?
Additional Supported Legislation
Justice Forward Virginia also supports a number of pieces of legislation. Click on each bill to find out more about what the bill does, who patrons the bill, and the status within the lawmaking process.