Looking Back: Virginia Criminal Justice Reforms in 2021

2021 was a tumultuous year in so many ways. The murder of George Floyd, and the shock so many of us felt as we watched videos of police abusing Americans, opened people’s eyes to the excesses of the criminal justice system. In Virginia, dedicated state-level advocacy and some courageous legislators created a unique opportunity. The result was the most meaningful and comprehensive changes to Virginia’s criminal justice system in its history. Before we jump back into the fray, let’s take a look back at what we accomplished together in 2021.

Incarcerating someone for five years for stealing something worth less than $1000 is facially unreasonable, but that’s exactly what Virginia’s Petit Larceny three strikes rule did. Delegate Kenneth R. Plum’s HB 2290 ELIMINATED the enhanced policy that put Virginians in a needless cycle of systemic abuse. 

With broad support, Delegate Lashrecse Aird’s HB1990 Racial Impact Statements allowed Virginia to join a host of other states— IA, CT, FL, OR, NJ, MN, & CO—in creating mechanisms to help prevent seemingly neutral criminal justice policy from having harmful outcomes. 

The scale of mass incarceration & supervision in Virginia is staggering, but abuses of the probation system are sometimes overlooked. Virginians sometimes went to prison for years for minor “technical” violations like missing meetings or positive drug tests. Meek Mill along with his REFORM alliance joined our advocacy efforts to advance Delegate Don Scott’s HB 2038. The new law corrects an egregious policy failure and helps to remove “the proverbial knee on the neck of marginalized communities.”

Virginia lacked a unified data collection in regards to pretrial decisions and outcomes. Senator L. Louise Lucas and Delegate Charniele Herring’s SB 1392/HB 2110 Pretrial Reform: Data Collection, now helps us to make informed decisions on how to minimize unnecessary pretrial detention, while ensuring community safety, and the timely disposition of criminal cases. 

“Part of our challenge in protecting public safety is the Code itself,” Delegate Vivian Watts once said. In one particular instance, Virginia had only one punishment for robbery: 5 YEARS TO LIFE in prison. Del. Watts’ HB1936 removed the “5 to Life” sentencing range, replacing it with more well-defined sentencing ranges that related more closely to the seriousness of the offense. 

Everyone deserves a chance to turn their lives around after going through the system. But Virginia had never allowed for expungement of criminal convictions. In Virginia, even a youthful mistake of judgement would follow you forever. After the tireless and many years work of Legal Aid Justice Center and Nolef Turns Inc., Delegate Charniele Herring and Senator Scott Surovell’s HB 2113/SB 1399 came to pass. The bill allows, for the first time, expungement of some criminal convictions. The bill also creates a system of automatic record sealing, which puts Virginia on the forefront of providing second chances. 

Although the Constitution requires a presumption of innocence and bond unless a person is determined to be a risk to the community, the Virginia Code flipped the script, applying a presumption against bail in a surprising range of cases. Senator Creigh Deeds’ SB 1266 ended presumption, allowing judges to do what they think is right and taking a big step forward in reducing unnecessary pretrial incarceration. 

It took countless years & advocacy organizations, but Virginia became the first jurisdiction in the South to legalize Marijuana. Del. Herring and Senator Adam Ebbin’s HB 2312/SB 1406 created an authority to regulate sale, and legalized simple possession and home cultivation for adults 21 years and up. MAJOR shouts out to Marijuana Justice! 

Every bit of relevant info should be allowed at trial, yet those accused of crimes in Virginia were prohibited from submitting evidence of mental illness (to include intellectual or developmental disability or autism spectrum disorder) due to a 1985 Virginia Supreme Court decision. Senators Barbara Favola & Jennifer McClellan, and Delegate Jeff Bourne changed that with HB 2047/SB 1383/SB 1315. Now juries can better understand the mindsets of those accused of crimes when determining their guilt or innocence.

For years, public defenders, capital defenders, abolition activists and others toiled in obscurity, if not ignominy, decades before the repeal of the death penalty became politically feasible. Advocates who placed unparalleled demands on themselves, making tremendous personal and professional sacrifices in the name of human dignity. Advocates who had little to gain but the reward of knowing they were doing the right thing, regardless of whether the world hated them for it. But in 2021, after decades of advocacy, three bill filings (Sen. Surovell, Delegate Mike Mullin, Delegate Lee Carter), and a Governor’s commitment to abolish this barbaric practice, Virginia finally gave up the power to kill its own people. 

Virginia entered 2021 as one of TWO states with entirely mandatory jury sentencing, which forced people to give up their right to a jury trial or face harsher sentences if convicted. Senator Joe Morrissey’s SB 5007 gives defendants who want a jury trial a choice of a judge or jury at sentencing—helping Virginians avoid the jury penalty, a driving force behind mass incarceration.

In the months following the murder of George Floyd, public defenders in Virginia drafted legislation to address racial disparities in pretextual policing practices. In March, Virginia became the first state to eliminate many pretexts—serving as a model for reform. It barred police from stopping cars for certain offenses, like having an air freshener hanging from your rearview mirror. 

70% of the Virginia Court of Appeals bench had spent their careers locking people up and defending police, NONE had fought for rights of indigent defendants. But In 2021, the General Assembly appointed public defenders and a legal aid attorney to the bench, providing the diversity of perspective that’s essential to equal justice under the law. 

We’re not here to rest on our laurels. There’s still so much work left to do. There’s a lot of reform left to do, and we’re going to have to fight to maintain the progress we made in 2021. But seeing how far we’ve come gives us hope and inspiration for the future. We are proud of the Virginia advocacy community and what each of you has contributed to the movement for fair trials, fair sentences, and racial justice. We look forward to advocating with you in 2022. Happy New Year and justice forward Virginia!