New Laws Go Into Effect - July 1, 2021
Today, Thursday July 1, 2021, marks the enactment of several of Justice Forward Virginia’s priority criminal justice reforms in the Commonwealth. Our legislative policy development and statewide advocacy ended presumptions against bail, created degrees of robbery, ended the petit larceny three strikes rule, allowed evidence of mental illness to be presented at trial, created a unified pretrial data collection system, legalized marijuana, abolished the death penalty, ended the jury penalty, and reformed a truly broken probation system in Virginia.
Pretrial reform - Ending presumptions against bail, SB 1266 [C. Deeds]: For the third year in a row, Justice Forward Virginia joined the Pretrial Justice Coalition in recommending reforms as groundwork for replacing our current system of cash bail. As it stood, although the Constitution requires a presumption of innocence, and requires bond unless a person is determined to be a risk of flight or a danger to themselves or to the community, the Virginia Code flipped the script where certain offenses had been charged; Defendants in those cases were forced to prove why they were not a danger to the community or a risk of flight if released before trial. Although those presumption offenses, like robbery or malicious wounding, sound extremely violent, they often weren’t, because of how broadly Virginia courts had interpreted the conduct that may satisfy those statutes. Presumptions served no real purpose other than to hold people in jail who did not need to be there before trial. The new law changes the presumption in bail hearings so that instead of the defense having to make a case for why they should not be held in jail, it’s the prosecution’s duty to prove why they should.
Creating “degrees” of robbery, HB 1936 [V. Watts]: Despite covering conduct that is often minor in nature, Virginia had only one punishment for robbery: five years to life in prison. This bill removes the “five to life” range, and replaces it with degrees of robbery, based on the seriousness of the offense.
Repealing petit larceny 3rd statute, HB 2290 [K. Plum]: Although the General Assembly raised the larceny threshold to $1000 in 2020, the Code still permitted people charged for a third time to face up to 5five years in prison. The large majority of people charged under this former statute were homeless or mentally ill. No matter when they committed the first or second offense, the third time they allegedly stole something as insignificant as a bar of soap, they faced 5 five years in the penitentiary. The new law repeals the enhanced penalties for a second or subsequent misdemeanor larceny conviction.
Allowing evidence of mental illness in non-insanity cases, HB 2047/SB 1315 [J. Bourne/J. McClellan/B. Favola]: Virginia used to follow a needlessly rigid rule barring any evidence of a defendant’s mental illness unless he plead not guilty by reason of insanity, even if the mental illness would better explain his conduct and help the jury render an accurate verdict. The General Assembly adopted a rule similar to the Model Penal Code and American Bar Association’s recommendation, allowing evidence of mental illness, intellectual disabilities, or developmental disabilities if that evidence tends to negate a mental state element of the offense.
Pretrial Reform - Data collection, HB 2110/SB 1391 [C. Herring/L. Lucas]: Before today, Virginia lacked a unified data collection system regarding pretrial decisions and outcomes. The implementation of this system means that all criminal justice organizations in the state are now required to collect and share data on the pretrial process, such as length of pretrial detention, demographic data, and what happens when certain conditions of bail are set. This data will enable us to make more informed decisions about how to minimize unnecessary, costly pretrial detention, while promoting community safety and the meaningful, timely disposition of criminal cases. It will allow for examinations of demographics to shed light on issues of race, ethnicity, gender, and age disparities and can promote practices which move the Commonwealth towards a more just criminal legal system.
Abolition of the death penalty, HB 2263/SB 1165 [M. Mullin/S. Surovell]: Virginia has executed more people than any state in the entire country. And, as with many aspects of the criminal justice system in America, people of different races are not treated equally when it comes to the death penalty. While African Americans constitute 13% of the US population, they account for 42% of America’s Death Row. Public defenders, capital defenders, abolition activists and others toiled in obscurity, if not ignominy, decades before repeal became politically feasible. Today, Virginia officially abolishes the death penalty, including for those persons currently under a death sentence. The bill provides that no person may be sentenced to death or put to death on or after its effective date for any violation of law.
Marijuana legalization, HB 2312 /SB 1406 [C. Herring/A. Ebbin]: As of July 1, persons 21 and older may possess up to an ounce of marijuana for personal use, and may also grow their own cannabis plants. Today also marks the beginning of the process of creating a market for retail sale of cannabis products in Virginia. Although a step in the right direction, these new laws create new crimes that we expect to be enforced more harshly against Black and Brown people, just like the prohibition scheme that preceded it. Instead of simply relying on enforcement of existing DWI laws, there are new laws barring “open containers” in vehicles and driving while smoking. These laws may seem like common-sense approaches, but in practice they give police broad discretion to stop motorists and search their cars without much more than a hunch. Black Virginians know all too well that even routine traffic stops can turn violent through no fault of our own. It’s important to understand the specifics of the law, so visit cannabis.virginia.gov for answers to frequently asked questions.
Ending the jury penalty, SB 5007 [J. Morrissey]: The Virginia justice system held the power to threaten you with harsh consequences if you asserted your constitutional right to trial by jury—the jury penalty was one reason why over 95% of felony convictions were obtained via guilty plea. Exercising your right to trial was akin to playing Russian roulette, because Virginia was one of only two states that still required a jury to sentence defendants who had jury trials. While judges use sentencing guidelines to sentence individuals convicted of a crime, the law prohibited jurors from being provided with copies of the sentencing guidelines. As a result, sentences handed out by juries are typically much longer than those given by judges. In addition, the law gave the prosecutor the right to request a jury trial, even if the Defendant didn’t want one, so not taking a plea effectively forced the accused to risk a long sentence. The new law ends this archaic practice, allowing defendants to elect a jury for trial and then have a judge sentence them.
Probation reform, HB 2038 [D. Scott]: Many have heard of mass incarceration, but most have not heard of mass supervision—the state of affairs created by indefinite terms of community and court supervision in the form of probation and parole. On probation, technical violations (something as minor as oversleeping and missing a drug test) could result in the imposition of years of back-up prison time. It also kept perfectly law-abiding citizens tethered to the court system and unable to move forward with their lives, well after they paid their debt to society. Virginia’s new sensible probation reform will limit probation terms (1 year for misdemeanors and 5 years for most felonies) as well as the amount of time that can be imposed for technical probation violations.
We want to extend our appreciation to all of the lawmakers who took up or fought for our priorities, including Governor Ralph Northam, Senator Jennifer McClellan, Senator Barbara Favola, Delegate Jeffrey Bourne, Delegate Cia Price, Delegate Don Scott, Delegate Ken Plum, Delegate Mike Mullin, Delegate Alfonso Lopez, Delegate Nancy Guy, Delegate Patrick Hope, Delegate Carrie Coyner, Senator Bill Stanley, Senator John Edwards, Delegate Sally Hudson, Senator Creigh Deeds, Delegate Vivian Watts, Senator Scott Surovell, Senator Joseph Morrissey, Delegate Charniele Herring, Delegate Angelia Williams Graves, Delegate Lashrecse Aird, Senator Jennifer Boysko, and Senator Louise Lucas, and Delegate Jennifer Caroll Foy.