Assaults on Law Enforcement - How Mandatory Minimums and Felony Punishments Empower Police Abuse
Two of the most powerful tools of mass incarceration are mandatory minimum sentences and making minor offenses into felonies. Virginia’s Assault on a Law Enforcement Officer (LEO) statute combines both of these tools. Typically, an assault is a misdemeanor in Virginia, which means it is punishable by a fine, or up to 12 months in jail. Our Assault on a Law Enforcement Officer statute, on the other hand, changes the same act into a felony with a mandatory minimum of six months in prison.
Mandatory minimum sentences deny judges and juries the ability to fashion an appropriate sentence based on the facts of the specific case. But this statute’s elevated punishment structure has other troubling effects on the criminal justice system: (1) It gives the police officer extraordinary power to punish those who insult or otherwise defy them, including people of color who are victims of excessive force, and (2) It intimidates the accused into taking plea offers in cases where the accused would prefer to take the case to trial. Any one of these effects would be a good reason to eliminate the elevated penalties for Assault on Law Enforcement. Put them together, and doing so becomes a criminal justice reform and racial justice imperative.
In the last few months, white America has begun to understand what Black and Brown people have known for centuries. Police routinely treat people of color differently than white people. Some officers believe violence and escalation are appropriate responses when people do not agree with them or insult them. And many officers lie precisely because they are accused of using excessive force or violating the rights of the people they are supposed to be protecting. We have given the police great power and authority, and some officers routinely abuse that power.
One of the ways that police officers often abuse their power is to pile criminal charges onto the people they abuse. The power of the police to charge their victims with crimes is a core method of intimidating and silencing those victims. Virginia law does not require any injury to convict someone of Assault on a Law Enforcement Officer. A minor touching, or even putting an officer in fear of rude or angry physical contact, can lead to a criminal charge that carries a mandatory six-month sentence upon conviction. The law treats a bump with a shoulder or an elbow as seriously as a punch in the face, as both require the mandatory six-month sentence, and such charges are often brought against people who were intoxicated, suffering from mental illness, or terrified by the threat they believed the police posed to them. This means that even the slightest contact with an officer during an arrest can be used as an excuse for the officer to pile on charges and increase the jeopardy that the accused faces.
We have seen cases in which officers charged Assault on Law Enforcement where:
A client in handcuffs “pushed” an officer (video showed that another officer had pushed her into his colleague);
The accused spit in the direction of an officer but did not hit them;
The officer tackled a suspect and the accused’s elbow knocked the officer’s glasses off as they fell to the ground;
The officer responded to burglary call and a man pointed a butter knife at the officer;
An officer’s foot was stepped on while making an arrest;
A man, walking with a cane, shoulder-bumped his arresting officer at court while walking to the bathroom;
Numerous people accused of kicking an officer with a heel while face down on the ground, being forcibly arrested;
An accused throwing a couch cushion that grazed a sheriff’s deputy;
Dozens accused of elbowing officers attempting to handcuff the accuseds’ arms behind their back;
A 14 year-old being thrown to the ground for refusing to answer police questions while attempting to enter his own house.
These are just a few examples of how this law is enforced, and each of them is what the officer claimed to have happened. Needless to say, the accused always had their own version of events. But the notion that any of these offenses merits a felony conviction and a mandatory six-month sentence reflects the mindset that has led to mass incarceration.
Whether this offense is charged depends on a number of factors. Who did the officer decide to stop that night? Did the officer choose to escalate that encounter into an arrest, or just let that person go with a warning or a ticket? Does the officer claim to have been touched or put in fear? Does the officer choose to report a felony offense to the magistrate? Each of these choices is within the officer’s discretion. This wide discretion in choosing how to enforce the law is a prime example of how the law creates the racial disparities we see in arrest, conviction, and incarceration rates.
That disparity is also driven by the connection between police use of force and Assault on Law Enforcement charges. Data shows that police use force disproportionately against Black people. For example, Fairfax County, the largest jurisdiction in the Commonwealth, recently revealed that in 2019, Black people were the targets in 46% of police use of force incidents, despite being under 10% of the county’s population. Along with the bias that comes from certain officers viewing Black people as more threatening than non-Black people, the increased use of force and other escalation tactics against people of color increase the opportunity for Black people to be charged with Assault on Law Enforcement.
We have seen the power the police wield every day. Police exercise discretion to decide who to stop, who they will investigate and question, and who they will arrest. Even well-intentioned officers are subject to the same inherent bias that we are all conditioned to accept by our society. And as we’ve seen, some officers explicitly view Black people as criminals and threats, rather than human beings that deserve dignity and respect. A statute that gives the officer the power to charge a felony with a six-month mandatory sentence based on what someone’s foot or elbow was doing during an arrest gives the police too much power. Ending that discretion is a matter of racial justice, as well as a powerful criminal justice reform.
The discretion created by the Assault on LEO statute does not end when the accused comes before the magistrate. The Court system exercises overwhelming discretion over the rights the accused enjoys before trial. The frustration of being wrongfully arrested and charged grows when the accused is held without bond by the magistrate and the judge at arraignment because of the nature of the charge. The accused then routinely spends several days in jail waiting for a bond hearing, as they wait for an attorney to be appointed or hired, and then for that attorney to file and argue a bond motion. Those days can turn into months or more if the court denies the motion, which the court will often do while characterizing the offense as a “violent felony.” The effect of spending days, weeks, or months in jail can be devastating, especially for poor people. Job loss, eviction (and the accompanying loss and destruction of property), and even children being taken away are among the secondary effects of short-to-medium term incarceration. The ramifications of a charge of assaulting a Law Enforcement Officer are grave even if there is no conviction. Studies reflect that Black people are more likely to be held pretrial than their white counterparts, which means there is a racial justice component at this step of the proceedings, as at every point in the criminal justice system.
Those of us who regularly practice criminal law have seen the effect these punishment ranges have on the accused. The reaction is always the same – shock and fear. “How can the punishment for this be so harsh? I can’t risk a trial – what happens if they believe the police?!” This creates an effect known as the Trial Penalty. When an accused faces harsh enough penalties if they lose at trial, they will do everything in their power to avoid a trial. Clients charged with Assault on Law Enforcement know that in most cases, a trial will come down to their word against the word of one or more police officers. The outcome of such a trial is inherently unpredictable, which our clients understand. For this reason, even innocent people routinely plead to lesser charges, such as simple assault, to avoid the risk of becoming a convicted felon and facing a lengthy mandatory jail sentence.
The right to have your day in court is the most important right in our criminal justice system. When the law creates punishments so harsh that innocent people are deterred from having their day in court, the criminal justice system ceases to work properly. More than 95% of criminal cases are resolved by plea in America, and excessive and mandatory punishments are among the primary reasons.
This statute and its enhanced penalties deprive those accused of their rights at every stage of the criminal justice system. Those deprivations fall especially hard on Black defendants and other people of color, making them even more insidious. Reforming the police means reducing their power to harm the communities they are intended to be protecting. Eliminating the enhanced penalties for assault on Law Enforcement Officers is a good place to start.
Linda McCausland and Andy Elders for contributed to this article.