Moving Forward
Nothing embodies the public defender experience quite like a rousing game of “Oh, you think that’s bad?” This is a time-honored tradition where defenders from different jurisdictions take turns one-upping each other with the arcane and draconian criminal laws and procedures that endanger the freedom and lives of the people they represent, in the various courthouses where they practice.
Until January of 2020, Virginia public defenders were championship contenders in this morbid game of one-upmanship.
To name one glaring example: At the time, we were one of only six states that retained jury sentencing, and one of only two where jury sentencing was completely mandatory. Jury sentencing can ensure justice and help fight mass incarceration in some cases; for example, when the charge is simple possession of drugs, a jury might better reflect the values of the community than a judge in determining that a jail sentence is unnecessary and inhumane. But in Virginia, mandatory jury sentencing, which a prosecutor could weaponize to coerce a guilty plea, turned about half of the criminal code into de facto mandatory minimum sentences, dramatically increasing the risk of extreme, outlier punishments. This made mandatory jury sentencing a primary contributor to the “trial penalty” in Virginia, making losing a trial such a frightening proposition that any reasonable person would accept a plea bargain — even those who are innocent.
This was far from the only reason we were mired in the stone ages of criminal justice. Here are a few more that highlighted the dire state of affairs:
Virginia was also one of only two states with an interdiction statute, also known as the “habitual drunkard” law. This law allowed courts to declare people “habitual drunkards” and prohibit them from possessing or consuming alcohol, with a punishment range up to one year in jail. Virginia also had something called felony petit larceny, an enhancement statute allowing someone convicted of a theft as minor as stealing a bar of soap to face felony punishment and up to five years in prison, if they had two prior theft offenses. As you might imagine, both of these laws almost exclusively applied to people who were unhoused, suffering from serious mental illness, or both.
Every single robbery in Virginia used to be a life offense, even conduct as minor as an 18-year-old high school bully pushing a younger student and stealing his headphones. Many young people went to prison for robberies that did not involve weapons or serious injury to anyone.
Poor defendants in Virginia were not allowed to request funding for expert witnesses without telling the prosecutor their trial strategy. Evidence of a defendant’s serious mental illness or intellectual disability was never admissible at trial, unless the defendant pled not guilty by reason of insanity, regardless of how well the person’s disorder explained their lack of intent or their lack of culpability.
Marijuana possession was punishable by up to a year in jail, and a mandatory six-month driver’s license suspension. Every criminal record in Virginia was permanent — even ages-old misdemeanor convictions could never be expunged. Police could pull people over simply for having a loud muffler, dark tint, a broken license plate tag light, or air freshener hanging from their rearview mirror.
And of course, Virginia was the capital of capital punishment: It was and is the No. 1, all-time leader in executions, and No. 2 in the country since the end of the moratorium on the death penalty in 1976. We elected the last Democratic governor in the United States to sign off on a death sentence — perhaps the best example of Virginia’s deep, bipartisan commitment to irrational, tough-on-crime politics, and the failed American model of arrest, prosecution, and punishment.
That’s a very long way of saying that for its entire history, until January 2020, Virginia’s criminal legal system moved incrementally but consistently in one direction only: toward more crimes, fewer rights, and harsher punishment. Simply put, the Commonwealth of Virginia had never embraced a criminal justice reform movement.
But what if I told you that since January of 2020, every single law listed above was repealed or modified? And what if I told you it was Virginia public defenders who helped draft the legislation or served as the advocacy lead in almost every instance?
Over the course of two regular legislative sessions and one special session, Virginia became the first Southern state to legalize marijuana possession and abolish the death penalty. Virginia repealed mandatory jury sentencing, the “habitual drunkard” law, and petit larceny third; created “degrees” of robbery that reflect the seriousness of the crime; and made it so that indigent defendants could obtain expert assistance without disclosing trial strategy to their adversary. Virginia created a record-sealing process akin to expungement, for convictions up to Class 5 felonies. And we became the first state in the entire country to place limits on pretextual policing practices — by prohibiting police from pulling over motorists for minor vehicle equipment violations, as well as stopping pedestrians for jaywalking. We also barred police searches based solely on the odor of marijuana.
And to top it off, Virginia joined a nationwide movement to reform probation laws and end mass supervision, by placing limits on how long a person can be incarcerated for so-called technical violations of probation, such as a positive drug screen, missing a meeting with a probation officer, or changing residences without permission, and by limiting the duration of time one could be supervised in the community.
Despite a long tradition of bipartisan indifference to criminal justice reform, Virginia achieved all of this in less than 18 months. In any other year, passing even one of these bills would have been considered a landmark achievement. So, what changed?
A historic civil rights movement centered around criminal justice reform contributed significantly, no doubt. But that was a nationwide movement, and other states did not see comparable progress. It also helped that one party held both chambers of the General Assembly, as well as the governorship. But Virginia Democrats had rarely prioritized criminal justice reform in the past, as noted above. And in 2020, some of them seemed as committed to the status quo as Virginia Republicans.
What made the difference in Virginia was effective state-level criminal justice reform advocacy. Despite gaining a national profile in 2020, criminal justice reform is primarily a state and local issue, with over 90% of America’s incarcerated population in state and local jails and prisons. Criminal law and procedure vary widely from state to state, meaning there’s rarely such a thing as a one-size-fits-all solution to problems like cash bail or mass supervision.
Nevertheless, most states lack advocacy organizations that make criminal justice reform their only business. Even in places with state-based organizations active on criminal justice reform, those organizations often lack subject matter expertise, either from directly impacted individuals or the attorneys and advocates on the front lines fighting for them.
This is what made Virginia different. Over the past several years, a vibrant, unified, knowledgeable and diverse, state-based criminal justice reform community has emerged, led by public defenders and directly impacted people and communities. The organization we’ve led for the past five years, Justice Forward Virginia, was among them. We quickly found a niche in legislative advocacy as subject matter experts who knew the unique ways in which Virginia’s criminal laws were unjust. We understood the solutions were often nuanced, and not necessarily what one would expect if legislators only followed the national dialogue.
This is why, after the murders of George Floyd and Breonna Taylor, when the usual suspects — police and prosecutors — stepped forward to seize control of the narrative and frame the problems as narrowly as possible, Virginia did something different. Rather than endorse the police reform narrative, which focused mainly on process and accountability, Virginia advocates asked the legislature to see the problem as much deeper than that. It is not mere coincidence that the country with the highest incarceration rate in the world also has the most problems with police accountability, or that the same forces which give police the power to stop and search Black people on a whim are those that have put a million Black men and women in prison, and another 1.5 million on probation and parole. We explained that criminal justice reform is police reform, and that the police will never be reformed until we address the source of their incredible power.
This is not a difficult case to make when you have a platform, access to decisionmakers, and an advocacy community that knows what they’re talking about. We had frontline advocates who witness injustice every day in court, and people and communities who know how that injustice destroys lives. Virginia advocates had the platform; we had built credibility and relationships with our elected officials; and when we made the case, they listened.
Where does this leave us now? As you’ve probably heard, Virginia held elections this fall, resulting in a clean sweep for Republicans, who won races for governor, attorney general, and lieutenant governor, as well as regaining control of the House of Delegates. Surprisingly, very little of the substantive progress Virginia made was at issue during the campaign season. Democrats did not run on the accomplishments of their own party — on this or almost any other issue — preferring instead to “run against Trump.” Although Republicans did attempt to seize on nationwide anti-reform sentiments, they mostly campaigned on manufactured controversies or other things that never actually happened in Virginia, like reducing police budgets and a parole system releasing waves of “violent criminals.” (As it happens, in 2021, the General Assembly approved a 7.5% raise for state troopers; and Virginia abolished parole 27 years ago, and as a result parole is a minute fraction of prison releases and community supervision.)
And yet we remain relentlessly optimistic. Criminal justice reform has long been a bipartisan issue, and it ought to be bipartisan in Virginia. As we say in our team, courtesy of Bad Brains, we’ve got that PMA — a positive mental attitude. Optimism isn’t optional when human rights are at stake. We must keep fighting, engaging allies on both sides of the aisle. Since November, we have held an event making the conservative case for criminal justice reform, which featured one of Virginia’s strongest Republican votes for reform, whose unerring support derives from her faith. Another featured guest works for Americans for Prosperity, which has a strong criminal justice reform advocacy presence in Virginia. The conversation was exceptional and affirmed our belief that criminal justice reform can be reclaimed from partisanship — if we fight for it.
Several of Justice Forward Virginia’s top legislative priorities for the 2022 session are exactly the types of issues that ought to have bipartisan appeal and have passed in other jurisdictions with bipartisan support: second-look legislation, repeal of mandatory minimums, requiring counsel at first-appearance, de-felonization of drug possession, and pay parity for public defenders, to name a few. It remains to be seen whether the political climate will allow us to make progress. But the fact we even have hope of maintaining momentum speaks volumes about the advocacy community we’ve built here in Virginia — and the prospects for sustainable reform everywhere.
Authored by Brad Haywood and Andy Elders for Inquest.