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Justice reform 2021: Assembly poised to erase mandatory minimums

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When the 2021 Virginia General Assembly opens on Jan. 13, criminal justice reform, a major issue in last year’s session, will be back front and center.

A group of progressive Virginia prosecutors has united behind a five-point agenda for the 2021 session. One of the key projects – getting rid of mandatory minimum sentences – won a boost from the State Crime Commission.

The commission voted 9-2 Jan. 5 to endorse the elimination of all 244 examples of mandatory minimum sentences from the Virginia criminal code. On an identical vote, the panel also approved making offenders eligible for resentencing.

Mandatory minimums have long troubled criminal defense lawyers, who complain that requiring minimum prison time ties the hands of judges and ignores the ability of courts to consider the defendant, his offense and the community as a whole in fashioning a sentence.

Lawyer-legislators on the commission said mandatory minimums are regularly used by prosecutors to bully defendants into accepting plea deals.

But proponents argue mandatory sentences deter crime, cut sentencing inequities and induce cooperation with prosecutors.

The crime commission staff said research on the effectiveness of mandatory minimums is inconclusive. The top offenses committed by state prison inmates with only mandatory minimum sentences are drug distribution, driving revoked or as a habitual offender, felon in possession of a firearm, first offense use of a firearm in a felony and simple assault of first responders. Black inmates, on average, have more mandatory minimum sentences than white inmates.

Tool for prosecutors

At the crime commission meeting, Sen. John Edwards, D-Roanoke, said he favored elimination of mandatory minimums for “a whole host of reasons.”

“One of which is the racial disparity. The other is the lack of individualized sentencing,” Edwards said.

“The Supreme Court held years ago that you’ve got to look at the individual, the history of the individual as well as the nature and extent of the crime…. A mandatory minimum does away with that. You’re stuck with whatever the mandatory minimum is,” Edwards said.

Sen. Scott Surovell, D-Fairfax, said minimums discourage trials.

“The behavior that I see in court every day, which really troubles me significantly, is prosecutors using mandatory minimums to extort non-mandatory minimum convictions out of people, because they have that leverage,” Surovell said.

The 12 progressive prosecutors say imbalance at the courthouse brings societal problems.

“They lead to the irrationally lengthy prison sentences that fuel mass incarceration while exacerbating the racial and socioeconomic inequities that have come to characterize our criminal justice system. Banning mandatory minimums will make our communities safer and stem the tide of mass incarceration,” the group said in its Jan. 4 news release.

Edwards called for blanket elimination of mandatory minimums, saying it would be difficult to pick and choose which minimum sentences to keep and which to toss.

“Either you do it or you don’t do it. It’s the only logical thing here,” Edwards said.

Del. Les Adams, R-Chatham – the only Republican legislator on the commission – expressed concern about blanket elimination. He urged discussion of allowing mandatory minimum sentences to be served concurrently with other offenses. He also spoke against resentencing for those now serving time.

Norfolk Police Chief Larry D. Boone opposed blanket elimination.

“I do not embrace the concept of doing a full-fledged sweep across the board,” Boone said.

Wise County Commonwealth’s Attorney Chuck Slemp – contacted for comment on the agenda of the progressive prosecutors – said most prosecutors favor elimination of some mandatory minimums, but retaining those for especially harmful crimes.

“For example, we may not need a mandatory minimum of one year for driving as a habitual offender. There is, however, a clear reason why a convicted drug dealer should be given a mandatory minimum if he is carrying a firearm while distributing illegal drugs,” Slemp said.

The crime commission staff said it would fashion legislation to both eliminate mandatory minimums and provide for resentencing.

Expungement

One of the thorniest criminal justice reforms facing the legislature is expungement. Virginia now is one of the stingiest states for allowing convicted defendants to shed their criminal records. Reformers hope to make Virginia one of the most forgiving jurisdictions.

But expungement reform stalled in 2020 over whether to make it automatic for certain crimes after certain times or to require a petition process.

The reform-minded prosecutors called for “automated, automatic and free” expungement.

“Too often, a persistent criminal record prevents those who have interacted with the criminal justice system from finding employment, securing housing or attaining an education long after they have proven to no longer pose a safety risk to the community,” the prosecutors said in their news release.

Surovell said Jan. 4 he plans to recommend petition-based expungement but was still working on details in talks with House Courts chair Charniele Herring.

3-strikes shoplifting

Reformers also are calling for elimination of a law that turns a third misdemeanor larceny charge into a felony. The progressive prosecutors labeled the statute “senselessly punitive.”

Sen. Joe Morrissey, D-Richmond, last year told colleagues there were 164 people in Virginia prisons solely on that three strikes law. He highlighted the case of a woman who died in prison serving a three-year sentence for stealing $45 worth of goods. His bill to eliminate the three-strikes shoplifting felony made it out of the Senate but died in the House Courts of Justice Committee in March.

Slemp was opposed. “By hampering the ability to punish those who are persistent thieves, we as a society encourage theft,” he said in an email.

Also on the wish list of the progressive prosecutors are ending cash bail and abolishing the Virginia death penalty.

The Virginia Association of Commonwealth’s Attorneys is not in conflict with the Virginia Progressive Prosecutors for Justice, but it only takes positions on specific bills and then only with a consensus of members, according to a statement released by VACA president Collin Stolle, the Virginia Beach commonwealth’s attorney.

Other expected bills likely to catch the interest of lawyers would make it easier for auto injury plaintiffs to settle UIM claims and increase the minimum limits of auto liability policies. Both ideas have been raised and defeated in prior sessions.