Synopsis

Although criminal justice reform efforts fell flat in the Virginia General Assembly earlier this year, the legislature will likely have another opportunity during a special session in August or September.
Real, meaningful reform requires addressing structural problems at the foundations of our criminal justice system, and not just the worst symptoms.
The Virginia Senate and Legislative Black Caucus are taking a big picture view of police reform as a subset of criminal justice reform.
Justice Forward Virginia is taking the same approach, and from now through the special session, will be helping inform you about which reforms are needed and why, in order to better equip you to join the movement for racial justice and civil rights in our criminal legal system.
“Get Informed About Police Reform” is our “explainer” series of virtual events, a boot camp of sorts for the general public who want to be effective volunteer advocates in 2020 and beyond. Part I is on July 7.

A Second-Chance for Criminal Justice Reform in 2020

We are currently witnessing one of the greatest movements for racial justice and civil rights in the history of the United States. In the face of worldwide protests against police violence and structural racism in the criminal legal system, American lawmakers are under unprecedented pressure to enact meaningful criminal justice reforms. In Virginia, lawmakers have said that they will act swiftly and address these issues in an upcoming special session of the General Assembly. That session, which was originally proposed to address the COVID-19 pandemic, is likely to commence in August or September of 2020.

For those of you who are new to Virginia government and politics, the General Assembly is our legislative body, and it typically only meets for about 2 months of each year, between mid-January and March. Special sessions are unusual, and the mere fact that one is being held to address policing and criminal justice reform says a lot about the sense of urgency among the Commonwealth’s legislators. This may owe in part to the legislature’s—and specifically the House of Delegates’—underwhelming efforts during the regular Virginia legislative session earlier this year, when most of the proposed major reforms to the criminal legal system were passed over, rejected, or referred for further study.

Thankfully, lawmakers now have another chance in 2020 to make good on campaign promises to enact meaningful change. Leaders of both chambers of the Virginia General Assembly have confirmed that fundamental reforms to the justice system simply cannot wait. In the Opinion pages of the Washington Post, Virginia Senate Democratic Caucus chair Mamie Locke and Senate Majority Leader Dick Saslaw promised to “tackle racial injustice” by introducing reforms such as the elimination of mandatory minimum sentences. House Majority Leader Charniele Herring told the Post, “There is an urgency to provide relief from what many have seen as a racist criminal justice system and its application.” Majority Leader Herring has further made clear that she sees this as more than just a policing problem, joining her Senate colleagues in repeatedly remarking on the need to repeal mandatory minimums.

Criminal Justice Reform IS Police Reform: Just Ask the Legislative Black Caucus and Senate Democrats

This moment is too important to waste on half measures and empty rhetoric. As we have previously pointed out, police reform is merely a subset of criminal justice reform, and real, lasting change requires fixing the structural defects at the foundations of our justice system. We need to stop overpolicing communities of color. We must promote humane, evidence-based alternatives to arrest and prosecution. We must implement robust, community-driven oversight of law enforcement, and improve access to police disciplinary records. And overall we must stop relying on police and prisons to solve societal problems.

Highlights from the Senate Dems and VLBC Plans

Thankfully, it appears the Virginia Senate Democrats and Virginia Legislative Black Caucus agree with this approach. Both bodies have released lists of priorities for the special session and beyond that go beyond point-of-arrest policies like banning chokeholds and funding bodycams, to policies that decrease our reliance on police and prisons. The full text of these plans is included at the end of this article.

Among the many great ideas, especially notable is interest from both groups in creating (or authorizing) civilian review boards that have subpoena power, which Justice Forward agrees is a critical aspect of reforming policing at the local level. Civilian oversight will be Part III of our series of “explainer” events, discussed below. As we’ll talk about during our event on July 22, 2020, civilian oversight must incorporate subpoena and auditing power in order to have a substantial impact.

Both groups also recognize the need to reduce racial disparities in arrests and other police encounters. Pretextual policing is one of the greatest sources of these disparities in our justice system. And if you reduce unnecessary police encounters, you also reduce the risk that an encounter might turn violent. Pretexts are the ridiculous excuses the police can rely on when what they really want to do is just stop and search someone for “crimes” they have no reason to believe have been committed. For example, all of the following give Virginia police carte blanche to stop a person or vehicle whenever they want:

Rosary beads or air freshener hanging from the rearview mirror.
Aftermarket exhaust system installed on a vehicle.
A single miniature light bulb above a license plate is broken.
Not walking within the painted lines of a crosswalk when you cross the street.
A police officer claims to smell "the odor of marijuana," even though marijuana has been decriminalized.

We’ll talk about pretextual policing during our July 15 event; Part II of our explainer series.

Other notable reforms proposed include reducing or eliminating the presence of police officers in schools, restoring parole, increasing good time credits for Virginia inmates, and “defelonizing” Virginia’s assault on law enforcement statute—which may sound controversial on its face, but is well-known to Virginia defense attorneys and affected individuals as one of the greatest sources of injustice and prosecutorial coercion in Virginia law.

How Justice Forward Will Be Involved in 2020 and Beyond

How does Justice Forward Virginia plan to be involved during the special session? With so much in flux right now, it is difficult to know exactly which reforms are realistic and which aren’t. Here are just a few of the changes we hope to focus on in the special session and beyond:

Eliminate stops and searches based on odor of marijuana
Repeal primary offenses for many vehicle equipment violations
Establish robust civilian oversight (“civilian review boards”) with subpoena power and auditing authority.
Make simple assault on a police officer a misdemeanor
Eliminate the presumption against bail (like this 2020 bill)
Eliminate mandatory minimums
Make jury sentencing optional to the accused (like this 2020 bill)
Permit juries to recommend rehabilitation, not just punishment (like this 2020 bill)
Establish degrees of robbery (like this 2020 bill)
Increase the availability of deferred dispositions (like this 2020 bill)
Identify and authorize more alternatives to arrest, relying on social workers and behavioral health professionals, and not initiating a criminal process, even where conduct (e.g. disorderly conduct, trespassing, drug possession/overdose) has traditionally led to arrest.
Reduce or eliminate the presence of police officers in schools.
Codify a diminished capacity defense, to acknowledge the reduced culpability of individuals suffering from behavorial health disorders.

Get Informed About Police Reform

As for how YOU can get involved, we believe information is the key to effective volunteer advocacy. Criminal justice reform tends to be complex and nuanced; sometimes it feels like you need a law degree just to understand reform proposals and why they matter. That said, this movement will not succeed without your help. And for that reason, we are holding an online “boot camp” of sorts—a series of “explainer” events called “Get Informed About Police Reform,” with the goal of explaining what is wrong with Virginia’s justice system in particular, which bills might be on the table during the special session, what those bills would accomplish, and how to talk to lawmakers about why they matter. So far we have four sessions planned…

Part I of “Get Informed About Police Reform” will be held on July 7, 2020. Senator Scott Surovell and Delegate Don Scott, leaders of the Senate Democrats and VLBC justice reform efforts, will join us for an overview of the priorities discussed above, why those proposals were selected, and what their chances are for becoming law in 2020.

In Part II of “Get Informed About Police Reform,” experienced Virginia criminal defense attorneys will drill down on pretextual policing, and will also discuss some of the popular police reforms that do NOT work (e.g. implicit bias training) or don't work for the purpose of reducing racial disparities or excessive force (e.g. body cam). The live feed will be available on Facebook Live, and will be recorded and posted to YouTube. More details are on the Facebook event page.

Part III, on July 22, 2020, co-sposored by Fairfax NAACP and Legal Aid Justice Center, will feature special guests Sean Perryman (President, Fairfax NAACP) and organizers involved in civilian oversight initiatives in Charlottesville and Richmond, including Sarah Burke, former member of the Charlottesville civilian review board.

Part IV, on July 28, 2020, will cover Virginia’s assault on law enforcement statute, and the issue of whether police (“school resource officers” or “SROs”) should be in schools

We will continue to educate and advocate for long overdue major changes to the Virginia system of justice. We are hopeful that the momentum built by people protesting in the streets will continue into the legislative chambers and give new life to previously rejected reforms while opening up conversations about transforming the system entirely.

One way to help support our movement for justice reform is by donating to help sustain our legislative efforts. You can also help by responding to action alerts from Justice Forward, so that you can let your representatives know that that it is not enough to just say or tweet that Black Lives Matter. Let them know that now is a time for action. Let them know that we demand change.