Defense Blog: Why We Oppose
Eight years ago this month, after months of planning, Justice Forward Virginia launched our website with a simple post: “Justice Forward Virginia is here.”
Since then, we have drafted dozens of bills, many of which have changed the criminal legal landscape in Virginia: ending mandatory jury sentencing, placing significant limits on pretextual policing, capping the jail time people can receive for technical probation violations, eliminating the felony of third-offense petit larceny, and so on. Beyond the bills we’ve worked on, we have supported scores of other good bills that have become law.
Throughout the eight years of Justice Forward Virginia’s existence, however, we have stood in opposition to legislation about as often as we have stood in support. Because bills that get defeated or amended rarely get the same attention as bills that become law, it’s worth taking a moment to highlight Justice Forward Virginia’s unique role in advancing the cause of justice at the General Assembly by standing in opposition to harmful legislation.
Protecting Our Progress: Pretextual Policing
In the 2020 special session, we passed a historic statewide ban on pulling drivers over for minor equipment violations and searching vehicles based solely on the odor of marijuana. Law enforcement have long claimed that such stops and searches are essential for public safety. They cite the interdiction of drugs and illegal firearms, and serving warrants on fugitives. But even before 2020, evidence from a study of 20 million traffic stops in neighboring North Carolina cast serious doubts about this claim. Justice Forward Virginia promoted the pretextual policing reform to reduce unnecessary interactions between law enforcement and Black drivers, and to reduce significant racial disparities in Virginia’s criminal legal system. (To read more about our pretextual policing reform, see our blog post and video here.)
Data from the Community Policing Act show that the significant racial disparities in traffic stops we were worried about were real. Since our pretextual policing law’s enactment, searches of drivers of all races have declined significantly, and searches of Black drivers have declined the most. Nonetheless, the law enforcement lobby has introduced bill after bill, year after year, in an effort to roll back this important progress. Senate Bill 947, filed by Senator Bill DeSteph in 2025, was just the most recent unsuccessful attempt. A racial and ethnic impact statement filed with SB 947 showed that the bill, if enacted, would have disproportionately impacted Black drivers, who are stopped more for minor equipment violations and are charged more often with driving under the influence of drugs.
2021: HB 1840, Del. Scott Wyatt
2022: HB 79, Del. Ronnie Campbell (incorporated HB 1030, Del. Terry Austin); HB 122, Del. Scott Wyatt; HB 632, Del. Betsy Carr
2023: SB 875, Sen. Ryan McDougle (incorporated SB 1010, Sen. Bill DeSteph); HB 1380, Del. Ronnie Campbell (incorporated HB 1445, Del. Scott Wyatt; and HB 1703, Del. Tara Durant); HB 2384, Del. Les Adams
2024: SB 65, Sen. Tara Durant; SB 97, Mark Peake; HB 684, Del. Jay Leftwich
Just as opponents of reform have attempted numerous times to repeal the pretextual policing law, they have also sought to roll back other criminal legal reforms:
Caps on jail time for technical probation violations
Evidence of mental health at trial
Ending presumptions against bail
Abolition of the death penalty
In each instance, Justice Forward Virginia has led the opposition or joined with other advocates to protect the important progress we have made. Without our continued presence at the General Assembly, there is no question our opponents would have chipped away at—if not repealed entirely—some of these significant reforms.
Standing Alone
Standing up to oppose attempts to repeal our reforms five years in a row is one thing. Opposing a bill that is being introduced for the first time is something else entirely.
In Virginia, the legislative process moves extremely fast. The General Assembly meets for 45 days in odd years and in even years, when considering the two-year budget, they meet for 60 days. When a bill has been filed, it may not appear on the legislative website until after session has started. Once the bill appears online, it can be set for a committee hearing whenever the committee meets. Bills generally appear on committee dockets no more than a day or two before they are considered by the relevant committee. During the committee meeting, bills are called by the chair not on the order they are listed on the docket, but often based on which lawmakers happen to be in the committee room.
Nevertheless, experienced advocates understand the process and are ready to speak on an issue at a moment’s notice. Occasionally, that means standing alone in opposition. On criminal justice legislation, Justice Forward Virginia is often the only organization prepared to speak against bills that would significantly impair the rights of the accused. Here are just a few examples from the 2025 session.
Creating a new felony for assault and battery (HB 1714)
Legislators work for their constituents, so we should not be surprised that many of the criminal legal proposals we see in the Virginia General Assembly are filed because a legislator heard from a constituent about an unfavorable outcome in a criminal case. Creating a new law to deal with an isolated outcome in a single case is rarely a good idea. The outcome often has more to do with the people involved than it does with the law, and the important details surrounding the anecdote are rarely available to legislators during Virginia’s rushed legislative sessions.
In this instance, the constituent story was very sad. A man was shoved by another man and sustained injuries that required hospitalization, including a concussion. The defendant was charged with misdemeanor assault and battery and was tried twice. First, he was convicted by a district court judge. Then, as was his right under Virginia law, the defendant appealed to circuit court for a new trial. At the second trial, the defendant was acquitted, ending the criminal case. According to public testimony, the injured man never really recovered from his injuries, and died not long after the criminal case ended.
Assault and battery is a Class 1 misdemeanor in Virginia, punishable by up to 12 months in jail or a fine of up to $2,500, or both. The crime involves an unwanted touching of another person, or putting someone in reasonable fear of an unwanted touching. Assault can become a Class 6 felony, unlawful wounding, if the person causing the harm does so with the intent to maim, disable, disfigure or kill, and causes bodily injury. The additional element of malice, which can be inferred from the use of a weapon (though a weapon is not required to prove malice), elevates the assault to malicious wounding, a Class 3 felony.
HB 1714, which had the support of the harmed man’s wife, proposed to create a new Class 6 felony based on the severity of injury to the harmed person—not on the intent or malice of the defendant. As we explained to the bill patron and to the House subcommittee hearing the legislation, this was not a simple addition of a new felony. This bill would have completely changed the way we punish assault in Virginia. For hundreds of years, Virginia has determined the degree of an assault offense by starting with the intent of the accused. This proposed change would have upended centuries of legal jurisprudence by looking first to the severity of the injury, rather than to the intent of the person charged.
On top of that was the fact that the defendant in this case, for reasons we may never know, was acquitted of the charge against him: misdemeanor assault and battery. If the defendant was acquitted of misdemeanor assault and battery, he would never have been convicted of the new felony, which would only have added to the Commonwealth’s burden of proof. So this proposed change would have fundamentally changed Virginia’s criminal law, but even if it had been in effect at the time, would not have changed the outcome of the case that inspired it.
While we heard from others who did not like the bill, we were the only group to state our opposition publicly. The bill failed, with two Democrats and one Republican in support, and three Democrats and two Republicans opposed.
Overturning a court decision to impose mandatory minimum sentences (SB 1397)
Another popular source of criminal justice legislation is a local elected prosecutor. For decades, prosecutors have had the ears of their delegates and senators, who are often eager to give them all the tools they need to put the bad guys away. As the late, great UVA and Harvard law professor Bill Stuntz wrote:
Legislators voting on criminal statutes face asymmetric political costs. If they criminalize too little, there is some possibility, however small, that they will be blamed for not giving police and prosecutors the necessary tools to deal with crime. If they criminalize too much, the only risk is that law enforcers will go after defendants who attract public sympathy — the Ken Starr / Bill Clinton scenario. But as that episode showed, the public blames the overzealous prosecutor in such cases, not the overcriminalizing legislator. Overcriminalization, whether strategic or symbolic, thus looks costless to lawmakers. This asymmetry is aggravated by another: it is much cheaper for interest groups to lobby for criminal legislation than against it. This inverts the usual dynamic, where legislation is easier to block than to generate. Plus, the most important interest group is law enforcers — police and prosecutors. They benefit from broader criminal prohibitions, which allow police officers to justify stops and arrests more easily (hence the appeal of loitering laws) and prosecutors to induce guilty pleas more readily. More guilty pleas make prosecutors’ jobs easier, and have the added benefit of raising their conviction rate.
That is the pathology. And this disease is degenerative: if everyone in the criminal justice system continues to do what comes naturally, the problem will continue to get worse.
Prosecutors in Virginia take full advantage of their leverage with lawmakers on criminal justice policy. The Virginia Association of Commonwealth’s Attorneys (VACA) has played an outsized role at the General Assembly for generations. VACA bears massive responsibility for our punitive system and the harms it continues to cause.
In the case that led to SB 1397, Lynchburg Commonwealth’s Attorney Bethany Harrison won a conviction under § 18.2-308.2, typically called the “felon-in-possession” law. A person who has previously been convicted of a felony cannot possess a firearm unless their rights have been restored. At issue in this case was the sentence. Under § 18.2-308.2, a person previously convicted of a nonviolent felony is subject to a two-year mandatory minimum sentence. The statute is crystal clear on this point:
Any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of any other felony within the prior 10 years shall be sentenced to a mandatory minimum term of imprisonment of two years.
Less clear, however, was whether this two-year mandatory minimum sentence applies to people who were not previously convicted of a nonviolent felony, but were instead adjudicated delinquent of a felony in juvenile court.
We could dismiss the distinction of “felony conviction” and “delinquency adjudication” as mere semantics but in so doing, we would also dismiss the origin story of juvenile courts in America. Simply stated, kids are different. Their brains are not fully developed. The purpose of the juvenile justice system is rehabilitation, not punishment. This is why we adjudicate kids delinquent, instead of convicting them of felonies like adults.
To hear the bill presented by the patron and his local prosecutor, you would have thought the defendant had evaded all responsibility for the crime of having a gun after having committed a felony. In reality, the defendant was convicted and sentenced to the two-year mandatory minimum. On appeal, he challenged the imposition of the mandatory minimum sentence. A three-judge panel of the Virginia Court of Appeals upheld the sentence, but a concurring opinion noted that it may be time for the entire Court of Appeals to revisit a 23-year-old precedent of that court, which had interpreted § 18.2-308.2 as requiring the mandatory minimum be imposed for a person previously adjudicated delinquent of a felony.
The entire 17-judge Virginia Court of Appeals did revisit the precedent and on December 3, 2024—just a month before the 2025 legislative session—issued a decision reversing the trial court’s imposition of the two-year mandatory minimum sentence: “Code § 18.2-308.2(A) differentiates between ‘convictions’ and ‘adjudications,’ and only applies mandatory sentencing provisions where a defendant has a prior qualifying felony conviction. Because the trial court was bound by our prior decisions at the time of sentencing, we vacate Jennings’ sentence and remand for resentencing.” The case is not over. The Office of the Attorney General, which handles criminal appeals, has petitioned the Supreme Court of Virginia to review the Court of Appeals’ decision. Arguments will likely be held in June or September 2025.
We stood alone in opposition to SB 1397, which would have required trial courts to impose mandatory minimum sentences in all cases where a person had been previously adjudicated delinquent of a felony, despite the plain language of § 18.2-308.2. The bill failed, 8–6.
Felony homicide for selling or sharing drugs that lead to an overdose death (SB 746)
The horrific increase in overdose deaths due to fentanyl, a synthetic opioid 50 times more potent than heroin, is cause for alarm. Though overdose deaths have started to decline since 2021, we can and should be taking more steps to reduce them.
And with those two points, we have likely reached the end of our agreement with proponents of SB 746—a bill that, as introduced, would have made it easier for prosecutors to obtain a murder conviction when any illegal drug is shared with or sold to a person who dies of an overdose. Felony murder carries a potential sentence of 5–40 years.
In Virginia, possession of any amount of the most commonly used controlled substances, such as heroin, cocaine, methamphetamine, and MDMA, is a Class 5 felony, punishable by up to 10 years in prison even for a first offense. Possession with the intent to distribute a drug is an unclassified felony with a penalty of 5–40 years in prison. A person who uses drugs may obtain more than they need for personal use on a particular day, sell the rest, and use the money to get more drugs the next time they use. They may also simply share the drugs and receive no money at all. Even in this situation, they can and often are prosecuted for possession with intent to distribute, and must establish the defense of “accommodation”—that is, they must prove they did not sell the drugs for a profit. Accommodation is a Class 5 felony, with the same penalty as drug possession.
Like so many legislative proposals that continue the failed War on Drugs, SB 746 ratchets up a punitive response. It takes aim at “drug dealers,” an easy mark for prosecutors and politicians. But as we have learned from our experiences with policing and prosecution of drug crimes in Virginia, “drug dealers” are very often drug users. While society and Virginia law draw harsh distinctions between dealers and users, they are often the very same people. Two of the most common reasons people sell drugs are to help their friends and to make money to support their own drug use habits. Law enforcement take advantage of these motivations, using confidential informants who offer to buy small amounts of drugs from such “dealers,” often to avoid punishment for possessing or selling drugs themselves. Law enforcement agencies have used this failed approach for decades, apparently with the working assumption that removing “dealers” from the streets will reduce the supply of illegal drugs. But the amount of drugs is driven by the demand for them. If one “dealer” goes to jail, another will step in to replace him.
In a statement issued when he vetoed a similar bill in 2019, Governor Ralph Northam—a pediatric neurologist—explained:
The disease of addiction has long devastated our communities. While I share the goal of addressing the opioid crisis and ensuring drug dealers are punished for supplying dangerous drugs, this bill goes beyond drug dealers and would punish individuals who are themselves struggling with addiction. The way to help individuals struggling with addiction is to ensure they receive proper treatment. We must continue to focus on the biological, psychological, and social factors that foster addiction so that those factors can be addressed and mitigated in order to save Virginia’s families and communities from the destruction of drug addiction.
Virginia has been ratcheting up the punishment for drug distribution since the 1990s, and to what end? Imprisonment does not reduce the supply of drugs or stop people from using them. (It does not even stop people from using drugs in jails or prisons, but that’s a topic for another day.) If punishing people who sell drugs with long prison sentences ended the market or the supply of illicit drugs, it would have done so long ago.
In previous sessions, we have proposed a new path for Virginia: reducing punishments for drug possession and treating substance use as a public health issue, rather than a criminal legal one. There is already evidence such approaches are working. Increased public education and increased access to Narcan, which can reverse the effects of an overdose when administered properly, have slowed the rates of overdose in many (though not all) communities in Virginia.
This was the third session in a row for the felony homicide for overdose death proposal, which had been defeated in committee in the Senate the past two years. While others have opposed this bill publicly in the past, such as the recovery community, this time we were the lone opposition.
We were not able to defeat the proposal, but we successfully led the charge to substantially reduce the harm this legislation could do. The Virginia Criminal Sentencing Commission anticipated that under the original bill, a total of seven people would be convicted over the next six years. The narrower version of SB 746 that passed the General Assembly would allow prosecutors to charge a person with involuntary manslaughter (1–10 years) when fentanyl (as opposed to any illegal drug) is shared with or sold to a person who dies of an overdose. We are waiting to learn whether the governor will sign or veto the bill.
Conclusion
We take no particular joy from standing alone in opposition. It is much easier to stand with others, especially when the position we take—protecting the rights of people accused of a crime—is often the politically difficult one for lawmakers. But the alternative is what we witnessed before Justice Forward Virginia: silence. For decades, lawmakers in Richmond took their cues from law enforcement. The result? A state that spends $1.5 billion per year on its prison system, incarcerating people at a higher rate than any democratic country in the world.
Over the last five years in Virginia, crime rates have fallen. Deaths from drug overdoses have fallen. Incarceration rates have fallen. The number of people searched as a result of traffic stops has fallen. Virginia is the first state in the country to ban most pretextual traffic stops, the first state in the South to legalize possession of marijuana, and the first state in the South to abolish capital punishment.
We are making progress, and Virginia is a better, safer place because of that progress. If that means we sometimes stand alone in opposition, so be it. Justice Forward.
Rob Poggenklass is Executive Director of Justice Forward Virginia.