Criminal Justice Reform Weekly Roundup - September 26, 2020

Criminal Justice News from Virginia

Sen. Scott Surovell’s bill aimed to amend VA’s current assault on law enforcement statutes, failed Tuesday in the House Courts of Justice Committee. Gutted by a fellow democrat with a substitute, followed by a motion for a crime commission study by Del. Jeff Bourne, SB5032 aimed to end mandatory minimum sentences for “assault” on police. Historically, the majority of these charges as the law stands are without injury. Preceding the special session, lawyers from across the Commonwealth presented countless examples of how the charge was being abused and unfairly applied to their clients; assault by onion ring, water, a pillow. “This is the only crime on the books where the same person is the victim, the lead witness, lead investigator and the charging officer. And that conflict of interest leads to this being overused,” stated Surovell. Virginia law does not require any injury to convict someone of Assault on a Law Enforcement Officer. A minor touching, or even putting an officer in fear of rude or angry physical contact, can lead to a felony criminal charge that carries a mandatory six-month sentence upon conviction. The law treats a bump with a shoulder or an elbow as seriously as a punch in the face, as both require the mandatory six-month sentence, and such charges are often brought against people who were intoxicated, suffering from mental illness, or terrified by the threat they believed the police posed to them. This means that even the slightest contact with an officer during an arrest can be used as an excuse for the officer to pile on charges and increase the jeopardy that the accused faces. Chief patron Surovell has vowed to bring the bill back in 2021. (Virginia Lawyers Weekly)

Richmond, VA - Parents and advocates for children are disappointed in the House Courts of Justice decision not to pass amendments to VA’s assault on law enforcement statutes in special session. Families with children who suffer from mental and emotional challenges have long been advocating for reforms that serve to protect children and adults from unwarranted and mandatory felony charges if/when entangled with officers of the law. Teresa Champion, a Virginia Autism Project Board member, said police have intervened in the past when her son James was in crisis and in need of hospital transport. James, 27, has autism and a brain inflammation disorder that impacts his behavior–at times contributing to aggressive confrontations with officers. Champion said he also has a tick that causes him to spit frequently, which some officers could consider an assault. University of Richmond Law Professor and expert Julie McConnell believes, “when that time comes, lawmakers should explicitly exclude children under 18 from being charged with felony assault on an officer” all together. (8 News)

Jennifer Carrol Foy testified in the House Courts of Justice earlier in the week in favor of SB5007 regarding jury sentencing reform, where the body passed the bill onto House Appropriations. The bill was amended with a re-enactment clause by delegates opposing the bill during Appropriations Committee meetings. If the amendment isn’t removed, the bill won’t go into effect until July of 2021 and will have to be reaffirmed in 2021 before that can happen. Opposition to the bill had cited baseless cost arguments leading into hearings. Carol-Foy’s testimony in support of the bill echoed a number of other advocates for the constitutional right to a jury trial. “As the first and only public defender ever elected to the General Assembly, I want to make clear that this is the most transformational bill we can pass to affect our criminal legal system. If we want a true justice system we need for people to have full and unfettered access to a jury trial with no threat of having only jury sentencing; where they have no access to a person’s sentencing guidelines, sentencing memos, and other helpful tools to ensure fairness and equity. Now we can talk about costs, but I’m talking about equity, fairness, and justice. We always find money to pay for our priorities. This must be a priority. You can’t put a price on justice, it’s as simple as that. We shouldn’t deny people their constitutional rights out of fear of costs. We must stand in right. We must do what’s right, and not what’s cheap and convenient. So I unequivocally support this bill. I thank the patron for bringing forth this bill. And I encourage everyone, if you really care about reforming our criminal justice system, if it’s not just a token statement, then you will support this effort. And I encourage everyone to do the same. 

Opponents have succeed in adding a re-enactment clause to the jury sentencing legislation. So, we’ve put together a lobby training event to empower volunteer advocates to urge the legislature to pass jury reforms without a re-enactment clause, immediately. The clause, proposed by a delegate who ultimately voted against the bill, requires the GA to vote on the bill again next year in order to take effect. Without this bill, Virginia will remain one of only two states that maintain entirely mandatory jury sentencing when there is a jury trial. The Zoom training, slated for Monday at 8pm, will be facilitated by our expert leadership team and is an opportunity to learn the ins and outs of advocating for this critical legislation so we can get it over the finish line in the next 1-2 weeks. Check social media and our website for updates.

Clarksville, VA - Republican Senator Jim Ruff clarified Senate Republicans’ views on police reform in an opinion piece for the Progress Index earlier in the week. “We are united in believing that the right solution is to get rid of the occasional bad apple rather than condemning all that wear the uniform.” Ruff, who had proposed legislation during session to take power from police unions to resolve isolated incidents of police misconduct, believes more widespread police reform needs are a misperception of Democrats in control of both the VA House and Senate. Ruff disagrees with most of the sweeping police reform legislation passing in the Special Session, with concerns over law enforcement organizations’ ability to maintain staffing during a time where police are being “demoralized”.  Ruff criticized attempts to prohibit the use of non lethal munitions and tear gas, particularly “in a year in which Antifa and other rioters are throwing human waste at officers.” He also calls into question the ability of his constituents to make educated determinations about complaints brought against the police, “They will never, in most cases, have faced a life or death crisis in which a decision must be made in a split second.” “They are likely to make decisions based on emotion and news coverage rather than fact.” (Progress Index)  

Capron, VA - COVID-19 cases in Virginia’s prison system have doubled since June, bringing their total cases to 3,600 and 26 deaths. The ACLU claims the corrections department has failed to provide basic safeguards against the virus. At some facilities, inmates don’t have water to wash hands or the ability to social distance. The prison system has agreed to release some inmates, but this continues to move too slowly to stem the spread of COVID-19. The ACLU of Virginia highlighted the plight of Deerfield Correctional Facility specifically in a notice to the state this week,. They allege that for the second time this summer the VADOC has violated a May settlement of a lawsuit by inmates over conditions related to the coronavirus in prisons. (Washington Post)

Want to help? Attorneys, legal aids, and law students interested in assisting incarcerated individuals with COVID-19 clemency petitions in VA can volunteer through the Virginia Redemption Project.

Pearisburg, VA - Attorney Dennis Nagel argued a confederate monument displayed at the Giles County courthouse illuminated a history of unequal treatment based on race in the southern community, after a VA judge sentenced his client Melvin Cecil Chapman to 30 years in prison. Chapman, a black man, was sentenced in the county’s Circuit Court nearly two years after officers found him and Chyanne Nicole Neely, a white woman, in a  motel room with a substance the state crime lab determined was methamphetamine. On July 29, Neely, 34, pleaded guilty to an amended charge of possessing a controlled substance with the intent to manufacture or distribute it. She was sentenced to serve only two years and one month. On Monday, Nagel pointed to the gap between Neely’s sentence and the recommended 30 years for Chapman and argued that it was not fair. “Her conduct was identical” to Chapman’s, he said. “A community that maintained such a memorial at the center of its legal system could have biases that would work against minority defendants,” Nagel said. (The Roanoke Times)

Criminal Justice News from Across America

Protests reignited across the nation following a Louisville, Kentucky grand jury announcement charging Brett Hankison, one of three officers involved In Breonna Taylor’s murder, with three counts of wanton endangerment in the first degree. The charges aren't in relation to Taylor's death or the bullets that were fired into her home in March as officers were serving a "no-knock" warrant. The charges were because of shots fired into her neighbor's apartment. The two other officers involved were not criminally charged and still have their jobs. In anticipation of public response to the ruling, LMPD declared a state of emergency ahead of the ruling. Protests have continued throughout the weekend in cities all over the U.S. (The Hill)

Louisville, KY - Benjamin Crump, attorney for Broenna Taylor’s family, demanded Attorney General Daniel Cameron release grand jury transcripts following a decision not to indict officers on criminal charges related to the killing of Breonna Taylor. “Did he present any evidence on Breonna Taylor's behalf?” Crump questioned. “Or did he make a unilateral decision to put his thumb on the scales of justice to help try to exonerate and justify the killing of Breonna Taylor by these police officers?” Gov. Andy Beshear, who preceded Cameron as the state’s attorney general, has also called on him to release whatever he can from the investigation without interfering. (Washington Post)

Louisville, KY - The family of David McAtee have filed a wrongful death lawsuit, accusing officers and soldiers of using excessive force and violating police department policies during protests following the deaths of George Floyd and Breonna Taylor earlier in the year. McAtee, who stood guard of his restaurant while chaos ensued in the city, was shot and killed by a member of the National Guard. Democratic Governor Andy Beshear had ordered the Guard into Louisville's streets for the first time since 1975. (NPR)

Winter Haven, FL - As state governments nationwide adopt urgent police reforms amidst a summer of reckoning with racial disparities in excessive use of force complaints, Governor Ron DeSantis of Florida has other plans. DeSantis announced a proposal Monday to crack down on “disorderly assemblies.” The “Combating Violence, Disorder and Looting and Law Enforcement Protection Act,” would be a “focal point” of the state’s next legislative session in 2021. The law aims to deliver felony penalties to protesters who block traffic without a permit and participants in gatherings of seven or more that result in injuries or property damage. (Tampa Bay Times)

Seattle, WA - The Seattle City Council voted to override Mayor Jenny Durkan’s vetoes of council bills intended to shrink the police force and scaling up community solutions. Hours of public testimony Tuesday urged council members to “hold the line” against the mayor and demonstrate they were defending the bills as reasonable first steps toward revamping public safety in the city. (The Seattle Times)