A Letter From Our Executive Director, Criminal Law Legislative Summary

In 2020 and 2021, Justice Forward Virginia helped pass roughly 40 pieces of legislation to improve Virginia’s criminal legal system. Along with our partners, advocates for reform, and state and national organizations, we made significant progress by repealing crimes, making the courtroom a fairer place for accused individuals, expanding opportunities for reentry, and limiting the ability of police to engage in racism and violence against the people they are supposed to protect. 


Last year, with a new governor in office, we again proposed a positive agenda: let courts give incarcerated people a Second Look, ensure counsel at first appearance, establish pay parity for public defenders, repeal mandatory minimums, defelonize the possession of drugs, and more. Unfortunately, with the House Courts of Justice Committee led by opponents of reform, our positive agenda was quickly defeated. Instead, we found ourselves battling to protect the progress we made as many lawmakers sought to return to the regressive policies of the past.


This year, with the same General Assembly returning to Richmond, we focused on protecting our progress. We achieved all of our legislative goals and more. Not only did we defeat efforts to repeal probation reform, bring back racist policing, disallow the use of mental health evidence at trial, and restore presumptions against bail, but we also stopped a bill designed to weaken the constitutional right to confront witnesses in person as well as legislation to create a mass surveillance system of automated license plate readers on Virginia’s highways.


In April, legislators returned to Richmond for the one-day reconvened session, to address the governor’s recommended changes to and vetoes of legislation. Except for the budget, which likely won’t be finalized until after the June 20 legislative primaries, we can now summarize what the General Assembly accomplished in 2023 in criminal law. The new laws, which take effect July 1 unless otherwise noted, fall into seven categories:


  • Empowering law enforcement and victims

  • Enacting new crimes, enhancing punishments, and making crimes easier to prove

  • Collateral consequences

  • Addressing mental illness

  • Tinkering with procedure

  • Compensating counsel and jurors

  • Miscellaneous


An eighth category of legislation is still before the governor: Parole transparency.


It’s also worth noting some of the legislation that did not pass, especially those bad bills Justice Forward Virginia helped to defeat. A ninth section, Notable failed legislation, explains those bills that passed the House but died in the Senate, and will not become law.


We will have more to say about the 2024 legislative session in the coming months. As always, our advocacy was successful this year because we were loud, relentless, and uncompromising in our support for a smarter, more evidence-informed criminal legal system. We know the stakes—the dignity, liberty, and lives of our fellow Virginians hang in the balance. We will keep working to educate lawmakers and future advocates about the injustices we see firsthand every day. Please, if you don’t already, follow us on Facebook, Instagram, and Twitter for real-time updates. And please reach out to us at info@justiceforwardva.com for more information about how you can get involved. Justice Forward.


In Solidarity,


Rob Poggenklass

Interim Executive Director

Justice Forward Virginia


Empowering law enforcement and victims

HB1943 and SB989: require commonwealth’s attorneys to consult with a crime victim in a felony case to inform them of the contents of a plea agreement and obtain the victim’s views about the disposition of the case. Before these bills, victims could request this consultation in writing; now the prosecutor will be required to consult with victims with or without such a request.


SB1244: requires the attorney general, which represents the Commonwealth in criminal appeals, to consult with a victim in the same manner that a commonwealth’s attorney does at trial.


HB2186: allows maintenance code officials to post no trespassing signs on derelict buildings. 


SB1455: allows local law enforcement to enact a 24-hour curfew if: (1) there’s an imminent threat of a riot constituting a clear and present danger; and (2) a city council or county board of supervisors meets and passes an emergency resolution. For cities only, the city manager and mayor must agree a curfew is necessary. It’s a Class 1 misdemeanor to violate such a curfew.


Enacting new crimes, enhancing punishments, and making crimes easier to prove

[As a refresher, the punishments for felonies and misdemeanors are contained in the following Virginia Code sections: 18.2-10 for felonies, and 18.2-11 for misdemeanors.]


HB1673/SB1156: Suffocation by blocking or obstructing the airway of another. 

The new law provides that any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully blocking or obstructing the airway of such person resulting in the wounding or bodily injury of such person is guilty of suffocation, a Class 6 felony. This new suffocation law will be in addition to the current strangulation law, which says: Any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such person resulting in the wounding or bodily injury of such person is guilty of strangulation, a Class 6 felony.


HB1885/SB1396: Organized retail theft. Establishes a new Class 3 felony for conspiring to commit larceny with a value of more than $5,000 over a 90-day period. Establishes a fund in the attorney general’s office to award grants to law enforcement for investigating and prosecuting these crimes. (Initially, this bill moved forward with a $1,000 threshold. Justice Forward Virginia opposed the bill because it’s unnecessary but pushed for a $10,000 threshold. Ultimately, the lawmakers settled on $5,000, which is much better than the original bill.)


HB2166/SB896: Adds petit larceny to racketeering activity offense list. Prohibits any person who is part of an enterprise from distributing anything of value known to have been derived from racketeering activity.


HB2372/SB1135: Judges and juries can make a permissive inference that a person in possession of a catalytic converter that has been removed from a vehicle has committed a crime unless the person is an authorized agent of a dealership, repair shop, or salvage yard. The law also creates a new Class 6 felony to buy or sell a detached catalytic converter unless complying with scrap metal purchasing rules.


HB1699: Creates a new Class 5 felony for buying or selling a minor child.


HB1892: Makes abduction of a minor a Class 2 felony, with exceptions for family or household members who have custody or visitation rights.


HB1478: Gang crimes. Current law says if a person is in a gang and participates in a predicate criminal act, the person is guilty of a Class 5 felony. If the gang includes a juvenile, the person is guilty of a Class 4 felony. Under the new law, if a person is in a gang and participates in a predicate criminal act, he’s guilty of a Class 4 felony. If the gang includes a juvenile or the predicate criminal act is an act of violence, he’s guilty of a Class 3 felony. Additionally, a third or subsequent conviction under this section within 10 years is a Class 2 felony. Previously, a third or subsequent conviction was a Class 3 felony.


HB1572/SB1291: Swatting. Creates a new Class 1 misdemeanor to cause another person to report a false emergency based on intentionally false information.


HB1583: Peeping by Drone. It’s already a Class 1 misdemeanor to use an electronic device to spy on someone; now it’s illegal to use a drone to spy, too.


HB2398: Sexual extortion. Creates a new Class 5 felony to maliciously threaten in writing to disseminate or not to delete an image or video of a person whose private parts are showing, and to cause the person to engage in sex acts.


Collateral consequences

HB1416/SB1436: Requires STI testing after arrest for certain offenses.


HB2370/SB841: Will keep defendants convicted of reckless driving after having been charged with DUI under the court’s jurisdiction for the period of license revocation to refer them to VASAP, restrict their driver’s licenses, and impose the terms of a suspended sentence.


HB2400/SB1402: Expungement and record sealing cleanup. Removes underage alcohol possession from the list of automatic sealing offenses because the offense is not reported to the Virginia State Police’s Central Criminal Records Exchange; seals marijuana offenses when 2021 record sealing law takes effect in July 2025; eliminates the fingerprint requirement for most expungements; and provides a process for the subject of an expunged or sealed record to get a copy of the expungement or sealing order.


SB958: Victim notification required for hearings on writs of actual innocence.


Addressing mental illness

HB2054/SB1267: In cases where a person is acquitted after a trial in which evidence of the person’s mental condition was introduced, requires courts to make available to the defendant information about local CSB resources.


HB1908/SB1507: Competency evaluation reports shall identify whether a defendant should be evaluated to determine whether they meet the criteria for a TDO.


Tinkering with procedure

HB1992: The appealing party in a Juvenile & Domestic Relations district court case must serve the notice of appeal on the opposing party or counsel of record. The governor recommended a change to say a failure to serve would not affect the validity of the appeal, but the court can continue or dismiss the appeal absent good cause shown. The General Assembly approved the recommendation.


HB2016: Provides for the appointment of two attorneys when a defendant is charged with a Class 1 felony (now aggravated murder, instead of capital murder). If there is a public defender office in the locality, one of the two attorneys shall be the public defender.


HB2019: Requires courts to consider sentencing guidelines before entering a deferred disposition in felony cases.


Compensating counsel and jurors

HB2037: Allows localities that supplement public defender salaries to send the money to the Virginia Indigent Defense Commission, which will administer the supplemental funding to VIDC employees.


SB1304: Requires the chief or presiding judge to say in writing why a request from court-appointed counsel is not justified.


HB2317/SB789: Increases the jury duty allowance from $30 to $50 per day.


Miscellaneous

HB2204/SB1398: Requires DMV to collect data on DUI and DUI-D, and to present it in an annual report. The first report shall be submitted on or before Oct. 1, 2024.


HB2298: Removes switchblade knives from and adds stiletto knives to the list of prohibited concealed weapons in public.


Parole transparency

HB2169/SB1361: 

  • Removes the Virginia Parole Board’s exemption from the Freedom of Information Act;

  • Parole Board will publish its actions monthly and will include the reasons for granting or denying release and the vote of each member. VPB to publish annual reports;

  • Requires that a parole candidate be provided with discovery that includes all materials the Board uses to make its determination;

  • Requires the Board provide individualized reasons for grant or denial. So, no more “serious nature of the offense” for every denial. Board members must give their own reasons for their vote, in a live hearing where the parole candidate is present;

  • People who are incarcerated will be provided with results of VPB’s investigation;

  • Final determinations will happen at public meetings.

These changes would take effect July 1, 2024.

The governor recommended that in addition to notifying victims of a VPB investigation, Commonwealth’s attorneys and crime victim and witness assistance shall be notified, too. The Senate rejected the governor’s amendment. The governor may approve or veto the original legislation.

UPDATE 5/12/23: The governor signed HB2169 & SB1361 as they were passed by the General Assembly, without his recommendation. The new law will take effect July 1, 2024.

Notable failed legislation

Violent crimes

HB1455: Would have made selling more than 2 mg of fentanyl attempted first-degree murder. 


HB1642: Would have made distribution of a Class I/II substance resulting in death felony murder, regardless of the time or place of death. (JFV opposed.)


HB1795: Would have created a new Class 4 felony for licensed health care providers who attempt or assist in an abortion to cause a miscarriage if infant is born alive and provider does not render aid.


HB1954: Would have made killing the fetus of another manslaughter.


HB2167: Would have created a new Class 3 felony to commit workplace violence.


Policing

HB1380/SB875: Would have repealed limits on pretextual policing. (JFV opposed—priority.)


HB2384: Would have created a new per se limit for THC in DUI-D cases and allowed vehicle searches based on the odor of marijuana. (JFV opposed—priority.)


HB1437/SB1165: Would have allowed the installation of automated license plate readers on highways maintained by VDOT, to take photos of vehicles, and to keep and share the data with other law enforcement agencies for up to 30 days. (JFV opposed.)


HB1672: Would have created a new Class 3 misdemeanor to flee when a law enforcement officer has reasonable suspicion to detain a person, the officer has communicated an order to stop, and the person refuses to obey the order.


Other

HB1365/SB877: Would have restored presumptions against bail. (JFV opposed—priority.)


HB1523: Would have created a new Class 6 felony for a third or subsequent solicitation of prostitution.


HB2013: Would have repealed jail caps on first and second technical probation violations. (JFV opposed—priority.)


HB2015: Would have created a new Class 1 misdemeanor to picket at a judge’s house.


HB2129: Would have allowed child witnesses to testify via closed circuit television if a court finds the child will suffer “moderate harm or mental trauma” by testifying in the defendant’s presence. (JFV opposed.)


HB2360/SB1353: Would have increased the mandatory minimum sentence for use of a firearm during the commission of a felony from 3 to 5 years for a first offense, and from 5 to 10 years for a second offense. (JFV opposed.)


SB842: Second Look. Would have provided a petition process for a person who has already served 15 years of a sentence for any conviction or a combination of any convictions who remains incarcerated in a state or local correctional facility and meets certain criteria to petition the circuit court that entered the original judgment or order to (i) suspend the unserved portion of such sentence or run the unserved portion of such sentence concurrently with another sentence, (ii) place such person on probation for such time as the court shall determine, or (iii) otherwise modify the sentence imposed.


SB1159: Would have extended from 90 to 180 days the length of time that must pass before fines and fees become delinquent. Would also have provided that fines and fees cannot become delinquent (and subject to collection) during a person’s term of incarceration and for 180 days after a person is released from incarceration.

Kelly Haywood