With Democrats in control of the Virginia General Assembly the push for criminal justice reforms will continue during the upcoming session.
Loudoun County Commonwealth’s Attorney Buta Biberaj, along with 11 other commonwealth’s attorneys from Virginia, signed a Jan. 4 letter requesting the General Assembly pass legislation that would end the death penalty, mandatory minimum sentences, the cash bail system, and the “three strikes” felony enhancement law, and require certain criminal records to be automatically expunged.
The letter was written and signed by the Virginia Progressive Prosecutors for Justice, which includes Biberaj and commonwealth’s attorneys Amy Ashworth, from Prince William County and the City of Manassas; Anton Bell, from the City of Hampton; Parisa Dehghani-Tafti, from Arlington County and the City of Falls Church; Steve Descano, from Fairfax County and the City of Fairfax; Howard Gwynn, from the City of Newport News; James M. Hingeley, from Albemarle County; Stephanie N. Morales, from the City of Portsmouth; Joseph D. Platania, from the City of Charlottesville; Bryan Porter, from the City of Alexandria; Shannon L. Taylor, from Henrico County; and Gregory D. Underwood, from the City of Norfolk. All 12 chief prosecutors ran as democrats in their respective elections.
The jurisdictions those prosecutors serve account for 43% of Virginia’s overall population, according to the most recent U.S. Census Bureau data.
The Death Penalty
The prosecutors asked the General Assembly to abolish the death penalty, stating it is “unjust, racially biased and ineffective at deterring crime.”
“We have more equitable and effective means of keeping our communities safe and addressing society’s most heinous crimes,” the prosecutors wrote.
Biberaj justified the prosecutors’ claim that the death penalty is ineffective by pointing out that criminals don’t pause before committing crimes to consider whether they will be punished by death.
“I don’t think that our general public does not going around killing people because they might be subject to the death penalty,” she said.
Biberaj also noted that there have been numerous people on death row who were later found to be innocent.
“That by itself should tell us that it’s not the appropriate sentence,” she said. “You can’t undo the death penalty. … When you exact the death penalty, that’s a permanent punishment.”
Biberaj also said families of victims in those types of cases oftentimes aren’t looking for the death penalty.
In the 2020 General Assembly session, Sen. Joseph Morrissey (D-16) introduced a bill seeking to impose a moratorium on executions that would have remained in effect until a joint subcommittee conducted a study of the death penalty in Virginia and presented its conclusions. That bill was continued to the 2021 General Assembly session.
Mandatory Minimum Sentences
The prosecutors also are pushing for an end to mandatory minimum sentences, stating they “prevent judges from taking an individualized, holistic approach to each sentence based on the specific circumstances of a given case” and “lead to irrationally lengthy prison sentences that fuel mass incarceration while exacerbating the racial and socioeconomic inequities that have come to characterize our criminal justice system.”
The prosecutors claim that banning mandatory minimum sentences will make communities safer.
Biberaj said enacting laws establishing mandatory minimum sentences was simply a way for politicians to sell themselves as being tough on crime.
In 2020, the General Assembly passed a bill introduced by Morrissey that allows convicted criminals to decide whether they would like the judge or jury to determine punishment, with an exception for capital murder cases. Virginia juries are bound by statutory sentencing guidelines that require them to impose mandatory minimum sentences in certain cases, while judges can suspend those sentences. That legislation will become law July 1.
Biberaj said mandatory minimums force juries into a corner when sentencing convicted criminals, regardless of the gravity of those criminals’ crimes. For instance, a drug kingpin who distributed thousands of dollars of drugs could face the same mandatory minimum as someone who was charged for buying $100 worth of drugs down the street.
“The statute treats it the same,” Biberaj said.
As for making communities safer, Biberaj said by eliminating mandatory minimum sentences, criminals convicted of smaller offenses would not be locked up for extended periods of time with no way to acquire necessary life skills. Rather, they would have the opportunity to return to the community sooner and become productive citizens.
The prosecutors are also asking legislators to abolish a law that converts criminals’ misdemeanor larceny offenses into felony offenses if they have previously been convicted of a misdemeanor larceny—commonly referred to as the “three strikes” law.
“This senselessly punitive means of addressing a nonviolent property crime fuels mass incarceration and furthers recidivism,” they wrote.
Under Virginia law, those convicted of a Class 1 misdemeanor can be punished by up to 12 months in jail. A Class 6 felony is punished by one to five years in prison. Both can be punished by an up-to $2,500 fine.
In the 2020 General Assembly session, Morrissey introduced a bill seeking to eliminate the “three strikes” law. That bill died in the House.
In another effort to decrease the number of incarcerated criminal suspects, the prosecutors are calling for the General Assembly to end the cash bail system, which, they claim, leads to a two-tiered justice system: one for the rich and one for “everybody else.”
Biberaj said the cash bail system places an unfair disadvantage on people who are financially challenged.
As an example, she said a person with little money who needs to support their family, but can’t do so while in jail and out of work, is more likely to sooner accept a plea deal that would convict them of a lesser, irrelevant charge but get them out of jail quicker. Conversely, someone with more money is more likely to hold out, remain in jail and fight the charges pressed against them.
The prosecutors claim cash bail disproportionately impacts Virginians of color, and state the only people who should be held pretrial are those who pose safety or flight risks. Otherwise, the prosecutors wrote, the criminal justice system should rely on the state’s “comprehensive suite of pretrial services to help decisionmakers make informed determinations about the interventions and supervision that will allow for pretrial release while keeping the community safe and incentivizing defendants to show up in court.”
In the 2020 General Assembly session, Del. Lee Carter (D-50) introduced a bill seeking to prohibit Virginia courts from requiring the execution of a secure bond as a condition of pretrial release for people arrested for felony or misdemeanor offenses. That bill died in the House.
If the state legislature does enact laws eliminating mandatory minimum sentences, the three strikes rule and the cash bail system in Virginia, jails and prisons in the commonwealth would see a fairly dramatic decrease in inmate population in the coming years.
Already, the population of the Loudoun County Adult Detention Center is lower than it has been in previous years—a decrease that’s somewhat attributable to Biberaj’s office requesting judges to not impose bail requirements for people charged with lesser, nonviolent offenses. Instead, prosecutors have been requesting judges to allow people out on personal recognizance, or a promise to return to court for their next hearing.
“That’s what the statute requires,” Biberaj said.
The average daily population of inmates incarcerated in the Loudoun Adult Detention Center decreased from 367 to 246 in 2020—the first year Biberaj acted as commonwealth’s attorney. From 2018 to 2019, the average daily population fell by only 11 inmates. From 2017 to 2018, it rose by 21 inmates.
Biberaj said the increase in the number of inmates released on personal recognizance has shown “no negative ramifications” and has proved that the bail system is “not the right way.”
Last among the prosecutors’ list of requests is for the General Assembly to pass legislation that would automatically expunge certain criminal records for convicted criminals after they’ve maintained a clean record “for an amount of time that corresponds to the severity of their offense.” Those expungements would be done at no cost to the convicted.
The prosecutors claim that communities are safest “when we more fully reintegrate those convicted of crimes into society, instead of forcing them down a path of recidivism.”
The prosecutors claim that all too often, people with criminal records can’t get hired, secure housing or get an education “long after they have proven to no longer pose a safety risk to the community.”
In the 2020 General Assembly session, Del. Charniele Herring (D-46) introduced a bill seeking to establish a process for the automatic expungement of criminal records for certain convictions, deferred dispositions, acquittals and offenses that prosecutors dismissed or chose not to prosecute. That bill died in the House.
The Virginia General Assembly began its 2021 session Wednesday, Jan. 13 and will adjourn Feb. 27.