The Connection

The deaths of George Floyd, Ahmaud Arbery, and Breonna Taylor has awoken Americans and Virginians to long standing problems in policing in America. After people are arrested additional damage is done by a criminal justice system that has been streamlined to produce convictions and punishment instead of rehabilitation and justice. The Senate Democratic Caucus has led and is continuing to conduct a series of community conversations to discuss these issues and we have heard from the public that now is not the time for studies or delay and that changes must be made during our Special Session. Many states have already enacted comprehensive policing reform measures in the wake of these events. Others already have measures in place. Many Virginia localities already have these measures in place as well, and some of this legislation has been considered in prior sessions.

The list below represents a series of distinct policy proposals that the Senate Democratic Caucus believes can be taken up, considered and passed during the special session in August. We will continue to take public input and work with stakeholders, the House of Delegates, state agencies, and Governor Northam to refine these measures over the next 60 days.

We cannot achieve true equity unless we address the entire Criminal Justice System and not solely policing. Further, we note that this is a problem that permeates beyond the criminal justice system and will require legislative action beyond this scope. In the absence of universal pre-K, quality schools, a path to economic equity, affordable healthcare, affordable and quality housing, and food access, we will not be able to close the many paths that lead to the criminal system pipeline.

1) Bringing Equity to Virginia Policing

● Prohibit No Knock Warrants (Breonna Taylor)

● Ban Sex With Individuals Arrested by Law Enforcement*

● Prohibit Hiring of Officers Fired or Resigned During Use of Force Investigations

● Create a Decertification Procedure for Law Enforcement Officers*

● Ban chokeholds and strangleholds (George Floyd)

● Require Attempts at De-escalation Prior to Use of Force

● Require Warnings Before Shots Fired

● Require Law Enforcement to Exhaust All Other Means Prior to Shooting

● Create Duty to Intervene by Fellow Law Enforcement Officers

● Prohibit Shooting at Moving Motor Vehicles

● Require Departments to Create a Use of Force Continuum

● Require Comprehensive Reporting by All Law Enforcement Agencies Including Use of Force Data

● Defelonize Assault on Law Enforcement Officer (Return to Misdemeanor Offense)

● Cancel HB599 Funding (Virginia supplemental funding for local police departments) After Local Police Have Disproportionate Use of Force Incidents In their Jurisdiction

2) Expand Local Authority to Respond to Mental Health and Regulate Law Enforcement

● Create Local Authority for a Marcus Alert System - System to Report Acute Mental Health Crises

● Create Local Option for Citizen Review Board Empowered to Investigate, Fire and/or Discipline Officers

3) Restore Courts’ and Prosecutors’ Flexibility to Effect Mercy

● Confirm Prosecutors' Authority to Drop Charges*

● Enhance Courts' Ability to Expunge Charges for Dismissed Charges, Substance Convictions and Pardoned Offenses*

4) Reduce Racial Profiling Opportunities for Law Enforcement

● Prohibit Searches of Person or Vehicle Based on Odor of Marijuana Without Probable Cause for Other Offenses*

● Prohibit Stops for Equipment Violations Not Covered by State Vehicle Inspection

● Secondary Offense For Dangling Objects, Extinguished Tag Light, Tinted Windows or Loud Exhaust

5) Restore Equity to the Sentencing Process

● Jury Sentencing Only at Option of the Accused*

● Eliminate Commonwealth’s Right to Demand Jury Trial When Jury Trials Suspended for State of Emergency*

● Require Agencies to Determine Cost Savings for Introduced Criminal Justice Legislation

6) Restore Equity to the Virginia Prison System

● Allow Earned Sentence Credit for Good Behavior During Prison*

● Create Discretion for Compassionate Release for Terminally Ill or Permanently Disabled Prisoners*

7) COVID Relief

● Virginia Rental Assistance Fund for Families Economically Impacted by COVID

● Require & Reimburse Localities for Postage Prepaid Envelopes for Absentee Voting*

*Represents Legislation Introduced in Prior Sessions

Reform Is Also a Long Term Process

There are other measures that are being studied and considered for the 2021 General Session that were introduced, are under study, and were too complex for the shortened special session including:

● Restoration of Parole

● Decoupling Charging and Conviction Decisions from Commonwealth Attorney Funding

● Public Defender Pay Equity

● Expanding Public Defender Offices to Additional Jurisdictions

● Elimination of Mandatory Minimum Sentences

The Senate Democratic Caucus has led in the area of Criminal Justice Reform for years and we look forward to working with the Governor and the House of Delegates to collaboratively enact these policies. Last year, many Senate criminal justice reform bills passed the Senate last year but were not presented to the Governor including:

■ Elimination of jury sentencing [Morrissey, SB 811],

■ Prohibiting imposition of death penalty to person with severe mental illness [Favola, SB 116],

■ Defelonzing third offense petit larceny [Morrissey, SB 807],

■ Allow jury to recommend leniency [Deeds, SB 326],

■ Ban sexual relations between officers and arested persons [Marsden, SB 242],

■ Require judges to explain failure to use of recommended evidence-based non-incarceration sentencing alternatives [Surovell, SB 438],

■ Reinstate prosecutors and judges’ authority to reduce/drop charges upon terms and conditions [Surovell, SB 489],

■ Allowing court appointed defendants to seek expert witness assistance on an ex parte basis without involvement of prosecutors [Morrissey, SB 806]

■ Compassionate release of permanently disabled prisoners [Bell, SB 493],

■ Compassionate release of terminally ill prisoners [Bell, SB 493],

■ Expunge marijuana/alcohol/tobacco charges dismissed per successful rehabilitation program completion [McDougle, SB 517],

■ Require Virginia Sentencing Commission recommendations to be published to juries before sentencing [Morrissey, SB 810],

■ Reduce maximum sentence for robberies without physical injuries from life to terms of years, [Morrissey, SB 805],

■ Expunge marijuana/tobacco/alcohol/fake ID convictions occurring before age 21 [McDougle, SB 517],

■ Expunge convictions pardoned by Governor [Norment, SB 608],

■ Defelonize consensual sexting between minors [Surovell, SB 440].