Special Session Week 4 - What's Happening This Week
We are three weeks into the Special Session. While we don’t know how long it will go, we did see the first bill from the special session (related to changes in voting requirements) signed into law last week. If you are following along with the Justice Forward Virginia daily updates on social media, you know that our priority legislation has been working its way through the committees in the originating chambers, and most of the bills have now been voted on by either the House or Senate.
So now what?
As we start week 4, we wanted to give you a status update on our priority legislation and tell you what to look for in the coming days. Remember to keep checking our social media channels for action alerts! Meetings are often scheduled at the last minute and it also may not be clear that legislators need to hear from constituents until right before a vote.
Jury Sentencing Reform
Passing legislation to reform jury sentencing will be a game changer. Currently, prosecutors can force the accused to have a trial by jury in any case, which means a sentence from a jury if convicted. Numerous offenses require a jury to impose a minimum sentence that would not be imposed if a judge did the sentencing. Letting the accused decide who will sentence them allows the accused to have a trial by jury without the fear of a harsher sentence merely because they exercised their constitutional rights. This is one of the topics that we consider to fall into the category of trial penalties – when prosecutors make the risks of going to trial so great that accused people are coerced into taking plea deals, even in cases when they are not guilty.
There are two jury sentencing reform bills: House Bill 5084 and Senate Bill 5007.
What’s Happened So Far: The House version of this bill hasn’t been voted on in committee. The Senate bill reported out of the Judiciary Committee (10-Y 5-N) and went to the Finance Committee where it reported out (11-Y 4-N) on September 3. It is ready to be considered by the full Senate. Discussions in the Finance Committee were around the cost of implementing the bill. Some argued that the bill will increase costs because more jury trials would necessitate hiring additional Commonwealth Attorneys and Public Defenders. While we should expect there to be more jury trials if the bill passes (that’s the point!), more trials does not necessarily mean more costs, as some offices will reallocate resources or work out other cases. On the whole, we expect that this legislation will SAVE money because (1) some people will win their trials, resulting in reduced incarceration and probation supervision, while (2) others will take fairer plea deals, resulting in shorter sentences. Most importantly, we can’t leave in place a system where people are forced into guilty pleas out of fear that doing the right thing might require additional funding.
What’s Next: We expect that the Senate will vote on this bill this week. By law, a bill must be read three times before a vote. Assuming it passes, we expect the House will take up the Senate version after the full Senate votes on it.
One problem with this current bill is that it imposes notice requirements on the accused, requiring them to tell the court 30 days before trial whether they want to forgo jury sentencing. This is problematic because juries sometimes convict on lesser offenses (think: simple possession rather than possession with intent to distribute) or sometimes convict on some charges while finding the accused not guilty on other charges. Asking the accused to decide whether they want a jury to sentence them before they know what (if anything) they’ve been convicted of does not make sense, and undercuts the purpose of the bill. JFV is advocating for this notification language to be removed from the bill.
Assault on Law Enforcement (Eliminating Mandatory Minimum)
Assault on a Law Enforcement Officer is a felony offense with a six-month mandatory minimum. The vast majority of these charges are not for legitimate attacks on police that result in real harm or injury to the officer. Where assaults on law enforcement result in serious injury, they can be charged as Malicious Wounding, which already carries elevated penalties. Most Assault on LEO charges under the current law are cases in which the accused was “disrespectful” to the officer or struggled when the police were using force against them. The Assault on LEO charge is often used to cover up police violence against Virginians, particularly against Black and brown communities. This bill would eliminate the mandatory minimum, and only make these offenses felonies if the officer suffered a visible bodily injury.
There is one bill being considered: Senate Bill 5032
What’s Happened So Far: This bill reported out of the Judiciary Committee (9-Y 5-N) on August 18 and was then passed by the Senate 21-15 on August 26.
What’s Next: We are expecting the House to consider this bill later this week.
Although this bill made it through the Senate, there is a lot of opposition. Prominent politicians, including Marco Rubio and Tom Cotton, have taken to Twitter to encourage people to voice their opposition. As a result, we are expecting to have to fight to get this through the House. So please contact your Delegate and ask them to support this bill!
Racial Profiling and Pretext Searches
Current law gives police nearly unlimited power to pull over people’s cars and, in many cases, search those cars. This power is used disproportionately to harass and invade the privacy of Black and Brown Virginians. The proposed legislation would significantly limit the police’s ability to pull a car over for minor equipment violations, a major source of pretext stops in the Commonwealth. Additionally, this bill would ban vehicle searches based on the odor of marijuana - an excuse that is routinely abused by police and is almost impossible to challenge in court.
Pretext searches help drive racial disparities in our jails and prisons and create more opportunities for the police to use force against Black people. This reform would strike a major blow against racial profiling in Virginia and is one of the top criminal justice reform priorities in the special session. JFV produced a short film that covers the problems with pretextual policing that provides a great overview for people just learning about the topic. Please share it with your friends!
There are two bills being considered: HB 5058 and SB 5029.
What’s Happened So Far: The House bill reported from the Courts of Justice Committee (13-Y 7-N) on August 18 and was passed by the full House (54-Y 44-N) on September 4. The Senate bill reported out of the Judiciary Committee (9-Y 6-N) on August 20 and passed the Senate (22-Y 14-N) on August 28.
What’s Next: Although the House bill and Senate bill are similar, they aren’t the same. Agreeing on language that is EXACTLY the same is the next step in this process. This will require a conference committee, which will probably happen next week (9/14 or later). If they can find a compromise, each chamber will have to vote on the new language or one body can agree to vote on the language approved by the other. If there is no compromise, the bill is dead.
HB 5058 is more comprehensive than its Senate counterpart, SB 5029. The House bill covers more traffic offenses (including defective equipment stops more broadly), bars stops for similar offenses under local statutes, and prevents stops for jaywalking. Both are great bills, but HB 5058 is preferable. This week, contact your Senator and tell them you support the House version.
Release of Prisoners (Earned Sentence Credits)
This legislation codifies the system for earned sentence credits that already exists in Department of Corrections policy and incentivizes good behavior. Currently individuals can earn 4.5 days off their sentence for every 30 days of good behavior but in the proposed legislation they can earn up to 15 days off their sentence for every 30 days of good behavior and participation in programs. Texas and South Carolina, among other states, have made reforms to reduce prison populations over the past several years. Neither state has seen any public safety issues from these changes, and both have seen significant savings in the state budget. Research also shows that long sentences do not deter crime, but allowing people to reduce their sentence by improving themselves will actually increase public safety. This change can also help address the disproportionate incarceration of Black men in the Commonwealth.
There are two bills to address earned sentence credits: HB 5148 and SB 5034.
What’s Happened So Far: The Senate bill reported from the Rehabilitations and Social Services committee (8-Y 7-N) on August 18 and was referred to the Finance and Appropriations Committee. The House bill reported from the Courts of Justice Committee (11-Y 9-N) on September 2 and from the Appropriations Committee (13-Y 9-N) on September 4. The bill passed by the Finance and Appropriations committee was amended significantly, and many offenses that will result in the longest sentences will not be eligible for the additional earned time credits. You can see the current language here, where Section A lists the exclusions.
What’s Next: The House bill will now be up for a vote by the full House this week. The Senate bill needs to be debated in the Finance and Appropriations Committee.
Expungement Reform
Virginia law currently ensures that no one convicted of a crime can ever have that offense removed from their record. The law also does not allow for the expungement of some kinds of offenses from your record, even if you were not convicted of that offense. Currently charges and acquittals are not expunged from a person’s record unless they petition the court to do so. The permanence of criminal records in Virginia are a racial justice issue that needs to be addressed in the upcoming special session. The proposed legislation will allow for the automatic expungement of charges and acquittals. In addition, it will allow individuals convicted of misdemeanors and some types of felonies to petition to have their records expunged after five years if all court fines have been paid and restitution has been completed.
There are two bills to address expungement reform: HB 5146 and SB 5043.
What’s Happened So Far: The House bill reported from the Courts of Justice committee (13-Y 8-N) on September 2, 202 and was referred to the Appropriations Committee. It was reported from the Appropriations Committee (13-Y 9-N) on September 3. The bill next will be voted on by the House.
The Senate bill reported out of the Judiciary Committee (14-Y 0-N) on August 20. This bill incorporated three other expungement bills that were proposed in the Senate (SB 5006, SB 5009, and SB 5110). It then reported out of the Finance and Appropriations committee (16-Y 0-N) on September 3.
What’s Next: The Senate is expected to vote on this bill later this week. If it passes it will go to the House for consideration.
If you’re following along at home, bookmark the Legislative Information System 2020 Special Session page – lots of the information you need is linked from here, including upcoming meetings, agendas, live streams, and minutes from past meetings.