Assembly approves deferred disposition

Peter Vieth//October 12, 2020

Assembly approves deferred disposition

Peter Vieth//October 12, 2020

After a decade of nuanced judicial refinements to the standard for deferring dispositions for criminal defendants, the General Assembly has agreed to give judges nearly unfettered discretion to delay criminal judgments for later consideration.

The reform given final approval Oct. 7 is a “sea change” in the practice of criminal law, according to one of the sponsors.

“It shows the criminal justice system can be tempered with mercy instead of being focused solely on punishment,” said Del. Michael Mullin, D-Newport News.

The bill also would require judges to dismiss a charge when the prosecutor and the defendant agree, a reform intended to curb judges’ resistance to prosecutors who seek to reduce or drop marijuana charges.

Still unresolved at press time was the final form of a separate measure to give criminal defendants the option of sentencing by a judge after a jury conviction. A conference committee was expected to wrangle with whether to require a second affirmative vote next year or just to delay the effective date of the sentencing change.

Deferred disposition

The deferred disposition bill sweeps broadly:

“A trial court presiding in a criminal case may, with the agreement of the defendant and the Commonwealth, after any plea or trial, with or without a determination, finding, or pronouncement of guilt, and notwithstanding the entry of a conviction order, upon consideration of the facts and circumstances of the case, including (i) mitigating factors relating to the defendant or the offense, (ii) the request of the victim, or (iii) any other appropriate factors, defer proceedings, defer entry of a conviction order, if none, or defer entry of a final order, and continue the case for final disposition, on such reasonable terms and conditions as may be agreed upon by the parties and placed on the record, or if there is no agreement, as may be imposed by the court. Final disposition may include (a) conviction of the original charge, (b) conviction of an alternative charge, or (c) dismissal of the proceedings.”

Judges can convict on violation of any term or condition, the measure says. Expungement applies if the parties agree.

“This gives prosecutors the ability to put a person on a rehabilitation plan – through community service, mental health treatment, drug treatment, et cetera – and then work toward that carrot at the end of the stick,” said Sen. Scott Surovell, D-Fairfax County. At the end of the deferral period, the judge could decide to reduce or even dismiss the charge, Surovell told a House committee Sept. 22.

Surovell sponsored a measure similar to Mullin’s bill.

Recovery-focused reform

The deferred disposition measure will be a help for those seeking recovery from addiction, Mullin said. He said studies show an addict can make 15 to 20 attempts before finally getting free of dependency.

“A first offender statute just ain’t going to cut it,” Mullin said Oct. 7. “You’ve got to have a carrot. You can’t just have a stick. And, for too long, the only thing we’ve been doing in the criminal justice system has been giving people jail time when what we need to be doing is lifting them up towards a better life,” Mullin said.

Mullins viewed the deferred disposition provision as working in tandem with an Assembly proposal for automatic expungement of many criminal records after eight years. The reform would give addicts real hope for recovery without stigma, Mullin said.

“Eight years is a long time. But, if you’re still good after eight years, well, darn it, we need to be able to recognize that and reward you for the hard work that you’ve done,” Mullin said.

When an addict with eight years of good behavior can get a job with a clean slate, “You’ve earned that,” Mullin added.

Dismissal authority

Another courthouse dispute settled by the legislation is an ongoing battle between progressive prosecutors trying to squelch marijuana prosecution and judges who say prosecutors cannot ignore laws on the books.

The Arlington County commonwealth’s attorney has asked the Supreme Court of Virginia to overrule county judges who required specific reasons for motions to dismiss or reduce a criminal charge. The high court has not acted.

The Assembly-passed measure would take away any such judicial discretion:

“Upon motion of the Commonwealth to dismiss a charge, whether with or without prejudice, and with the consent of the defendant, a court shall grant the motion unless the court finds by clear and convincing evidence that the motion was made as the result of (i) bribery or (ii) bias or prejudice toward a victim as defined in § 19.2-11.01 because of the race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin of the victim.”

The legislation “basically would conform Virginia practice to federal practice when it comes to motions to dismiss with prejudice or without prejudice,” Surovell told delegates last month.

Sentencing reform still in play

More than half of Virginia’s elected prosecutors sought to derail a proposal to allow defendants to opt for judge sentencing, even if they took a jury trial and were convicted. The jury sentencing reform proposal is alive, but it’s currently saddled with a requirement that it be reenacted at the next Assembly session.

The re-enactment clause would require the legislative process to start from scratch in January.

A band of 66 of Virginia’s 120 elected commonwealth’s attorneys announced Sept. 30 they opposed the judicial sentence option. They said it would disenfranchise citizens of their right to participate in the outcome of criminal cases.

“Citizen jurors are an important check on the excesses of professional jurists whether they err in punishments the community views as overly lenient or overly harsh,” wrote Wise County Commonwealth’s Attorney Chuck Slemp.

Two competing versions of the judicial sentencing option emerged, one with the re-enactment clause and one with a delayed enactment clause. The issue is before a conference committee.

“I’m guardedly optimistic that House and Senate Conferees will substitute a delayed enactment clause for the current re-enactment clause,” said Sen. Joe Morrissey, D-Richmond, sponsor of the proposal.


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