Criminal Justice Reform in Virginia
Convening in August, the Virginia General Assembly special session recently concluded with the passage of a series of bills to address criminal justice reform. While these bills are all steps in the right direction, more needs to be done in the upcoming January session to address the gaps and bills that did not pass.
The Virginia General Assembly passed a law to give Civilian Review Boards the power to initiate investigations and have a say in disciplinary rulings for law enforcement groups. While these groups existed before, they were previously restricted to an advisory role. However, this new law, which goes into effect July 1st 2021, only allows localities to implement this measure, rather than actually requiring these oversight groups. Shifting to mandatory civilian input would allow for greater transparency and accountability.
In further attempts to reduce violence and police brutality, House Bill 5049 limits the use of military weapons and vehicles by police, except when the Criminal Justice Service Board approves a waiver. The bill allows for the use of “kinetic impact munitions,” such as rubber and plastic-coated projectiles, only in the direct defense of an officer or other person. This is especially significant in the context of protests, with many police across the country using tear gas and rubber bullets on crowds. Other bills that passed include measures to increase crisis training, de-escalation techniques, and bias training.
Additionally, both the VA House of Delegates and Senate took measures to try to address accountability and enforcement of officer misconduct punishments. Until the Special Session this past August, officers who were dismissed or under review could apply and continue to work in other districts. However, the passage of House Bill 5051 requires the Department of Criminal Justice Services to establish standards of conduct, adopt procedural due process, and alert the Criminal Justice Service Board of possible violations. These measures serve to prevent officers from resigning and being re-hired in new areas. Many police chiefs in Virginia, such as Norfolk Chief Boone, have expressed frustration at how easy it is for an offending officer to escape prosecution, and therefore de-certification, and then find work at a nearby agency. House Bill 5104 requires greater disclosure of information regarding individual officers’ misconduct, arrests, and civil suits to potential new employers in law enforcement or correctional facilities. Should these conditions not be met, officers will be barred from employment in these sectors.
The disclosure of information bill only requires disclosure to law enforcement-related hiring. There is a double standard in reporting practices: civilians must report even minor offenses, significantly affecting future employment and access to government resources, while law enforcement enjoys special privileges. This also demonstrates the power imbalance created by “qualified immunity,” a legal doctrine that protects public officials from lawsuits that are not founded on breaches of a “clearly established” law.
Despite establishing more concrete standards of conduct with restrictions on what is allowed and when it is considered “acceptable” to violate civilian rights, these bills still need to be expanded to actually punish and hold law enforcement accountable. Only a small portion of officers who had violations or complaints against them are decertified, resulting in Virginia having one of the lowest decertification rates in the nation. We also need to require trials and complete investigations for all reported violations.
For increased accountability, House Bill 5029 requires other officers to intervene in cases of excessive force, as well as report the offending officer. While this bill is a necessary provision, the vaguely defined phrasing of “unlawful excess force” and “attempt to intervene” when “objectively possible and reasonable” within the bill could result in divergent interpretations by law enforcement agencies themselves.
The Virginia General Assembly’s January session must prioritize the re-direction of resources and funds towards community programs, especially those concerned with health emergencies, homelessness, and mental health. The first responders to these calls should be trained medical professionals with community services support, rather than armed police. Virginia should also continue its trend of decriminalizing minor offenses, developing more alternatives to jail time, and adopting trial reform.
The views expressed above are solely the author's and are not endorsed by the Virginia Policy Review, The Frank Batten School of Leadership and Public Policy, or the University of Virginia. Although this organization has members who are University of Virginia students and may have University employees associated or engaged in its activities and affairs, the organization is not a part of or an agency of the University. It is a separate and independent organization which is responsible for and manages its own activities and affairs. The University does not direct, supervise or control the organization and is not responsible for the organization’s contracts, acts, or omissions.
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