Opinion: Commentary: Special Session Summary #1: Criminal Justice Reform Delivered

Opinion: Commentary: Special Session Summary #1: Criminal Justice Reform Delivered

First of three parts.

Last week, the General Assembly special session effectively ended. Gov. Ralph Northam called the session to adjust the budget after the economic harm caused by the COVID-19 crisis. After George Floyd’s May 26, 2020 murder and citizens’ demands for change, we chose to broaden our work and focus on three areas: criminal justice, policing reform, and the budget. I will address criminal justice reform this week, policing reform next week and the budget changes last.

In early June, the Senate Democratic Caucus determined a limited focus on only policing would not address the bulk of harm inflicted by our criminal justice system. We invited suggestions and created a committee of Senators to vet 150 ideas which we narrowed to 28 objectives and 11 bills.

First, we passed a racial profiling bill that prohibits police from stopping vehicles for violations arising out of subjective unverifiable judgments such as window tint or loud exhaust violations, and prohibited searches based on an allegation of marijuana odor in light of the decriminalization of marijuana last session. This will reduce opportunities for racially-biased enforcement.

We passed legislation creating a framework for every locality in Virginia to have access to emergency mental health response teams by 2026. Treating psychiatric emergencies as mental health crises instead of law enforcement problems will bring appropriate help to people in crisis instead of criminal charges.

The U.S. Department of Justice has authority to investigate police departments for a pattern and practice of racially-biased policing and negotiate consent decrees to alter behavior and the Obama Administration has negotiated decrees after deaths such as Michael Brown, Tamir Rice and Freddie Gray. The Trump Administration has negotiated zero. We approved a bill giving the Virginia Attorney General the authority and staffing to investigate Virginia law enforcement agencies to pick up where the Trump Administration has refused to act.

I carried legislation that restored discretion to Virginia’s prosecutors. In the 24 years I have practiced law, I have never seen a judge reject a prosecutor’s request to drop a case. Judges in Arlington and Norfolk now routinely refuse to grant government requests to dismiss marijuana possession charges. My legislation requires a judge to dismiss a criminal charge upon the agreement of the government and a defendant unless a victim can establish racial bias or bribery.

My legislation also allows plea agreements to defer charges for dismissal or reduced charges after the accused completes steps such as drug treatment, mental health counseling, community service and good behavior. This had been Virginia law until the last 10 years after conservative legislators pressured judges to cease the practice and Virginia’s appellate courts altered 200 years of Virginia law finding that measures like this were not authorized by the legislature.

We reformed Virginia’s jury sentencing law dating to 1796, enacted when felonies could only be punished by the death penalty. Today, Virginia is one of only two states in America in which prosecutors can demand a jury to recommend a sentence. Juries give sentences that often range far higher than sentencing guidelines recommend, causing many accused people to forego a trial, even when they are innocent, to avoid lengthy sentences. This will restore balance to our criminal justice system and make our constitutional promise of a right to trial by jury a reality.

The General Assembly passed legislation that allows localities to set up civilian review boards with subpoena power and real authority. Currently, many jurisdictions, including Fairfax County, have civilian review boards for police, but they are only advisory.

We expanded Virginia’s program to give inmates credit towards early release if they are of good behavior, engaged in education and follow through on rehabilitation programs. Today, Virginia has one of the most restrictive earned sentence programs in the country due to measures proposed by now-U.S. Attorney General Bill Barr in 1995.

We hope that these reforms will bring broader, structural change to Virginia’s criminal justice system and mitigate 200 years of outdated policies that have caused unnecessary harm and fallen disproportionately upon low-income people and communities of color. I was proud to be part of this historic effort.

I hope you will share your views by emailing me at scott@scottsurovell.org.