The Results Are In - 2020 Special Session Legislative Priorities

Reasons to Celebrate

The 10+ week Special Session lasted much longer than anyone thought it would, and there was so much happening that it was hard for anyone to keep up! The end result is that there are lots of new laws that are headed to the Governor’s desk which will make Virginia a safer and more just place for all residents.  In this post we are going to walk you through the legislation that Justice Forward Virginia was most focused on.  Keep an eye out for another post (coming soon!) about all the other policing-related legislation that was passed this special session. 

Successes

Jury Sentencing Reform — Senate Bill 5007

Passing legislation to reform jury sentencing is a game changer. Many advocates believe that this will be the biggest criminal justice reform in Virginia in decades. 

The Issue: Defendants can select to have a trial by a jury of their peers or a trial in front of a judge. Currently however, even when a defendant selects a judge trial, the prosecutors can force the accused to have a trial by jury. Current law requires mandatory jury sentencing for all cases where a jury has convicted. Numerous offenses require a jury to impose a minimum sentence that would not be imposed if a judge did the sentencing because jury sentences are bound by statutory guidelines rather than the sentencing guidelines judges use. In one example Senator Morrissey provided during debate the sentencing guidelines a judge would use imposed a penalty of 1-3 years while the statutory guidelines the jury used were 5-30 years. This creates a clear trial penalty – the defendant gets 26 years because they chose a trial, rather than the 1-3 year range in effect if they had been sentenced by a judge. Prosecutors understand the leverage created when the risks of going to trial are so great, and they regularly use it to their advantage. As a result, the accused is often coerced into taking a plea deal, even in cases when they are not guilty.

Once this law goes into effect on July 1, 2021, the accused will be able to decide who will sentence them if a jury convicts them. This allows the accused to exercise their constitutional right to have a jury of their peers without the fear of a harsher sentence merely because they didn’t take the prosecutors plea deal. 

What Happened: This bill was one of the most high drama of the special session.  The Senate passed the bill (22-Y 18-N) on September 10.  The House Courts of Justice committee considered it and passed a substitution (11-Y 9-N) on September 22 and referred it to the House Appropriations Committee.  The Appropriations Committee first amended the bill to have a delayed enactment clause (so the bill wouldn’t go into effect until July 2021) and then added a re-enactment clause. A re-enactment clause would require that the bill be considered again in the 2021 regular session, go through all committees, and be voted on again or else it wouldn’t become a law.  Effectively, this would have meant starting over. Despite efforts to have the amendment removed before the House vote, the House passed the bill with the re-enactment clause (57-Y 42-N) on October 2, 2020. The Senate rejected the House amendments, which sent the bill to conference committee on October 7. Advocates began hearing rumblings that the House may not have the votes to pass the bill without the re-enactment clause, and volunteers jumped to action.  After emergency meetings, phone calls to legislators, and a social media blitz, we waited to hear the final result. On October 16 the conference report was presented and the Senate passed the bill (22-Y 16-N) which sent it to the House for consideration.  The House also passed the bill (55-Y 42-N), a victory for all Virginians. 

Controversy: This bill was opposed by some (but not all!) of the Commonwealth's Attorneys.   Since this provides a more fair process for defendants, it makes the prosecutors’ jobs harder. If they can’t use threats to force plea deals. they may find themselves having more trials.  Alternatively, they will have to offer fairer plea deals to induce pleas.

Opponents of the bill argued that it would increase costs because more people would choose jury trials.  In reality, the financial costs of the bill remain unpredictable, as the official fiscal impact statement indicated. While there may be an initial increase in trials, we expect that the number of trials will level out as CAs adjust their plea offers in the new environment.  In the middle/long-term, we expect substantial cost savings as people go to jail less often and for less time. 

Racial Profiling and Pretext Searches — House Bill 5058

Current law gives police nearly unlimited power to pull over and search people’s cars. This power is used disproportionately to harass and invade the privacy of Black and brown Virginians. This legislation significantly limits the police’s ability to pull a car over for minor equipment violations, a major source of pretext stops in the Commonwealth. Additionally, this bill bans vehicle searches based solely on the odor of marijuana - an excuse routinely abused by police, but almost impossible to challenge in court. 

Pretext searches help drive racial disparities in our jails and prisons and create more opportunities for the police to use force against Black people. This reform strikes a major blow against racial profiling in Virginia and was another of our top criminal justice reform priorities in the special session. JFV produced a short film that covers the problems with pretextual policing that provides a great overview for people just learning about the topic.

There were two bills being considered: HB 5058 and SB 5029. Ultimately, the House bill passed. 

What Happened: The House bill passed the House (54-Y 44-N) on September 4.  The Senate considered the House’s bill and passed it with a substitution (20-Y 19-N) on October 1. The House considered the Senate substitution and voted to adopt that version (53-Y 41-N) on October 2.  After the bill was passed, an oversight was discovered that led to a prohibition on stopping cars driving at night without functioning headlights and brake lights. Governor Northam proposed a change to address this mistake, and it was sent back to the House for consideration on October 21. 

What’s Next: Assuming the House and Senate agree to the Governor’s proposed change this bill will be signed and should go into effect in early 2021. 

Release of Prisoners — HB 5148

This legislation codifies the system for earned sentence credits that already exists in Department of Corrections policy and incentivizes good behavior.  Currently, individuals can earn 4.5 days off their sentence for every 30 days of good behavior. Once this law goes into effect some inmates will earn up to 15 days off their sentence for every 30 days of good behavior and participation in programs. Texas and South Carolina, among other states, have made similar reforms to reduce prison populations over the past several years. Neither state has seen any public safety issues from these changes, and both have seen significant savings in the state budget.  Research also shows that long sentences do not deter crime, but allowing people to reduce their sentence by improving themselves will actually increase public safety. This change will also help address the disproportionate incarceration of Black men in the Commonwealth.

There were two bills to address earned sentence credits: HB 5148 and SB 5034. Ultimately, the House Bill passed. 

What Happened: The House Courts of Justice Committee and Appropriations Committee both offered substitutes and then another substitute was offered on the floor of the House before it was voted on.  The bill passed the House (52-Y 43-N) on September 10. The Senate considered the bill and passed it with a substitution (21-Y 19-N) on October 1. The House rejected the Senate substitution, and the bill went to conference on October 7. The conference report was presented on October 14, at which time both the House (54-Y 42-N) and the Senate (21-Y 18-N) passed the bill. On October 21, it was Enrolled and sent to the Governor for signature. The law will go into effect on January 1, 2022. 

Evolution of the Bill: The initial bill allowed all individuals to earn equal time off their sentences, regardless of the crime they were convicted of. The amount of time earned was based on their behavior and the participation in programs designed to rehabilitate them during incarceration. All individuals fully participating in assigned programs could earn 15 days off their sentence for every 30 days served. The final language exempted people convicted of a long list of crimes from earning the 15 days for 30 days served, and instead limits them to 4.5 days per 30 days served (the rate without any legislation.) A full list of crimes excluded from this earned sentence legislation can be found in the bill. 

We Are Still Not Sure

Expungement Reform — Senate Bill 5043 and House Bill 5146

Virginia law currently ensures that no one convicted of a crime can ever have that offense removed from their record. The law also does not allow for the expungement of some kinds of offenses from your record, even if you were not convicted of that offense. Currently charges and acquittals are not expunged from a person’s record unless they petition the court to do so, and this is an expense many people can’t afford. The permanence of criminal records in Virginia are a racial justice issue that needs to be addressed. 

The House and Senate have different bills, and while there are similar end goals, the details differ. One of the changes being considered in the proposed legislation will allow for the automatic expungement of charges and acquittals. In addition, it will allow individuals convicted of misdemeanors and some types of felonies to petition to have their records expunged after a number of years if all court fines have been paid and restitution has been completed. 

There are two bills to address expungement reform: SB 5043 and HB 5146

What’s Happened So Far: The Senate bill reported out of the Judiciary Committee (14-Y 0-N) on August 20. This bill incorporated three other expungement bills that were proposed in the Senate (SB 5006, SB 5009, and SB 5110). The Senate passed this bill (38-Y 2-N) on September 10. The House considered the Senate bill and passed it with a substitution (58-Y 39-N) on October 2. The Senate rejected the substitution on October 7. 

Meanwhile, the House passed HB 5146 (59-Y 37-N 1-A) on September 9. The Senate offered a substitution and passed the bill (24-Y 16-N) on October 1. The House rejected the Senate substitution on October 2. 

On October 7 the two bills went to conference committee, and that’s where they remain. There hasn’t been much movement so we don’t know if they are going to make it out of conference this Fall, but it’s 2020, so you never know what could happen!

How the Bills Differ: The Senate bill applies to a limited number of offenses and under more limited circumstances. The House bill was significantly more ambitious, applying to convictions (not currently expungable) and occurring automatically under certain terms. While the House’s approach is preferable, its scope is broader and there are a number of technical issues to sort out - which should be achievable since the House bill does not take effect until 2024. The two bills do not have much in common. We hope to see progress on this important reform, whether now or in 2021.

Try Again Next Year (Well in 12 weeks)

Assault on Law Enforcement (Eliminating Mandatory Minimum) – Senate Bill 5032

Assault on a Law Enforcement Officer is a felony offense with a six-month mandatory minimum. The vast majority of these charges are not for violent attacks on police, or for offenses that result in real harm or injury to the officer. Where assaults on law enforcement result in serious injury, they can be charged as Malicious Wounding, a felony that already carries elevated penalties. Most Assault on LEO charges under current law involve disrespect towards police or very mild physical contact with the police. In some cases, innocent people are charged for fighting back against police violence. In those cases, Assault on LEO is used to cover up police violence against Virginians, particularly in Black and brown communities. This bill would have eliminated the mandatory minimum, and only made these offenses felonies if the officer suffered a visible bodily injury.

What Happened: This bill passed the Senate (21-Y 15-N) on August 26. It was referred to the House committee for Courts of Justice on September 17 and was passed by indefinitely (18-Y 1-N) on September 22.