Mandatory Minimums at Crossover
The General Assembly is heading into Crossover, that time when bills passed by one house are sent to the other. Because the House and the Senate each passed a mandatory minimums bill, each will now consider the other’s bill. If neither house adopts the other’s bill, both bills are sent to Conference for negotiations between legislators chosen by each house’s leadership. Crossover is a good time to take a look at what each bill does and does not do to reform our broken sentencing laws.
The Senate passed SB 1443, patroned by Senator Edwards, on a 21-17 vote. The Senate bill abolishes mandatory minimum sentencing almost entirely. The only exception in the Senate bill is for capital murder of a law enforcement officer, which would remain punishable only by mandatory life imprisonment. The Senate bill otherwise eliminates every mandatory minimum in the code, including those for DUIs, drug offenses, traffic offenses, sex offenses, and firearms offenses.
The House passed a much more limited reform bill, HB 2331, patroned by Delegate Mullin, on a 58-41 vote. The House bill eliminates mandatory minimums for on alcohol sales, ID theft, and habitual offenders. It also addresses mandatory punishments for drug offenses, including sales of large amounts and second-offense drug distribution, as well as distribution at schools and to minors. The House bill leaves in place mandatory minimums for DUIs, sex offenses, firearms offenses, and crimes of violence.
The two bills diverge on the question of whether those currently serving mandatory minimum sentences would be eligible for resentencing now that their offenses no longer carry mandatory penalties. The House bill would allow for resentencing, though only for those offenses whose mandatory penalties it eliminates. The Senate bill sets aside the question of resentencing for future study, with a report due back in November 2021. This means the Senate would not currently create any opportunity for resentencing, but could back broader resentencing measures in the future.
Justice Forward Virginia strongly prefers the Senate bill. We are asking the House of Delegates to pass SB 1443 to abolish mandatory minimum sentences in Virginia. The rationale for abolishing mandatory minimums is clear - (1) They coerce those accused of crimes into plea agreements, forcing them to give up their right to defend themselves of offenses they did not commit; (2) They do not reduce crime, as study after study has shown; (3) They bar judges and juries from exercising mercy where appropriate, forcing them to impose cruel and arbitrary penalties they do not believe are justified by the facts of the case; and (4) Like every harsh punishment adopted by our criminal legal system, they're imposed disproportionately on Black people.
What is less clear is why we would recognize the harm done by mandatory minimums, and then eliminate only a few of them, while leaving the rest in place to continue warping the system. The arguments that justify the House’s elimination of some mandatory minimums apply with equal or greater force to those the Senate seeks to eliminate. While the offenses remaining may be more serious in nature, serious offenses are the cases where mandatory minimums do the most harm. Serious offenses require vigorous protections to ensure that the accused gets a fair trial and that no one is falsely convicted.
Serious offenses also require careful attention if there is a sentencing. Serious offenses are more likely to involve defendants with complicated personal histories, including people who were previous victims of crime or who are seriously mentally ill. Serious offenses are also more likely to result in lengthy sentences, which require individualized determinations by judges and juries to ensure that justice is done. The notion that there is no place for mercy from a judge or jury is contrary to our values as a society. Legislators who have heard none of the facts of the case are not better suited to decide what is fair than the members of our communities who have given individual cases their careful consideration.
With respect to the question of resentencing, Justice Forward remains hopeful that the Senate’s process will eventually result in broader resentencing opportunities. Limiting resentencing only to certain offenses significantly limits its impact. Everyone who has been denied individualized sentencing has been denied due process and the chance to have a judge or jury fashion a fair sentence in their case. We should take the necessary time to fashion a resentencing remedy that works for everyone serving a mandatory minimum.
Once again, Justice Forward Virginia is asking the House of Delegates to pass SB 1443 to abolish mandatory minimum sentences in Virginia. This result is consistent with the consensus reached by criminologists, the Virginia Crime Commission, and Virginia Progressive Prosecutors for Justice, representing nearly half of Virginia’s population. We are proud to join in this call for full abolition of mandatory minimums with Families Against Mandatory Minimums, ACLU of Virginia, the Virginia Legislative Black Caucus, Virginia NAACP, Americans for Prosperity, and others. We hope you will join us in this fight.