[Virginia Lawyers Weekly, 1/22/2020; author: Maura Mazurowski]

Democrats – led by Gov. Ralph Northam – came to Richmond prepared to rewrite many of Virginia’s criminal justice laws. But not everyone sees eye-to-eye on the best approach, even those urging reform.

“The goal is to call attention to the many injustices that exist within the prisons and the criminal justice system,” said Lynetta Thompson, co-chair of the Virginia Prison Justice Network, at a press conference on Jan. 10.

The meeting was held in response to Northam’s criminal justice reform he revealed earlier this month. Northam’s plan includes decriminalizing marijuana, raising the threshold amount for felony larceny and changing how the state approaches parole.

Northam said that Virginia is not ready to legalize marijuana entirely. But his proposal would make the possession of small amounts of marijuana punishable by a $50 civil penalty. The legislation would also clear criminal records of past simple possession convictions.

But not all Democrats are in agreement on Northam’s proposal to decriminalize marijuana. Clare Gastañaga, executive director of the American Civil Liberties Union said she cannot support the governor’s proposal – particularly House Bill 972 – because the reform would create “a whole new law” of smoking while driving.

“We do not need a new crime that further empowers the police to engage in disparate policing,” Gastañaga said.

Currently, the penalty for having an open container of alcohol in a car is a Class 4 misdemeanor with a $250 maximum fine. Under Northam’s proposals, the penalty for having marijuana in a car and smoking while driving is a first defense misdemeanor with up to 30 days in jail or a second defense misdemeanor with up to a year in jail, respectively.

Gastañaga added that HB 972, introduced by House Majority Leader Del. Charniele Herring D-Alexandria, would make the possession of marijuana a criminal charge for juveniles.

“Anything that does not move us into the direction of stopping the harm and helping to move us into the direction of remediating the effects of the war on drugs is something that we cannot support,” Gastañaga said.

House Minority Leader Del. Todd Gilbert, R-Shenandoah, said in an interview that he is open to how society is evolving on the issue of marijuana. However, he takes issue with the “narrative” around the drug.

“There seems to be the narrative that people are languishing in our jails for possession of marijuana,” Gilbert said. “But I think the vast majority of defendants originally charged with possession of marijuana never serve a day in jail.”

Gilbert said he thinks Virginia should hold off on decriminalization and allow other states to “make all the mistakes” before determining what the commonwealth’s policy will be.

Last year, Northam helped broker a compromise with Republicans that raised the state’s felony threshold from $200 to $500. He is now calling for the amount to be raised to $1,000 so Virginians don’t receive a “lifelong mark” on their records for stealing relatively low-dollar items.

Valerie Slater, executive director of RISE for Youth Coalition, said that robbery and larceny are the charges for the majority of youth taken to adult court. She therefore promoted House Bill 274, which would raise the minimum age for being tried as an adult from 14 to 16 years old.

“In a better world, we would not prosecute 17- and 18-year-olds as adults either. But this is at least a step in the right direction,” Slater said.

More than half of the criminal justice advocates at the Jan. 10 press conference raised concern over parole in Virginia, including Jen Carter, co-founder of the Humanization Project.

Carter promoted House Bill 1532, which would expand and codify the existing credit system that would lessen an individual’s sentencing through good behavior.

Though discretionary parole does not currently exist in Virginia, it can be granted to some prisoners who meet certain criteria.

“Keeping people in prison longer doesn’t make society safer, but making better citizens does,” Carter said.

In 1995, the Assembly abolished parole in Virginia. But juries determining sentences were not informed of the change until 2000. As such, one of Northam’s proposals will allow inmates who were sentenced during that five-year period to be considered for parole.

The governor also wants to extend parole eligibility for prisoners who are sick or elderly and have served 15 to 20 years in prison.

Gilbert, a criminal defense attorney, said that while no criminal justice system is perfect, he fears Northam’s plan will push the commonwealth into a “pro-criminal direction.”

“For every politician who thinks they see injustice or inequality for convicted criminals, they need to understand that for the vast majority of those examples there’s also a victim,” Gilbert said.

He said that since the abolition of parole, Virginians have never been safer.

“If we return to a situation where people are serving effectively 25% of [a sentence] before they’re released back into the community, then the community certainly is not going to be safe,” Gilbert said.

More than 30 bills are being introduced this session that address reforms to Virginia’s criminal justice system. They include:

• SB 103: Introduced by Sen. David Marsden, the bill provides that any person sentenced to a life term as a juvenile who has served at least 20 years of their sentence shall be eligible for parole.
• SB 546: Introduced by Sen. John Edwards, the bill would increase the minimum age at which a juvenile can be tried as an adult from 14 to 16 years of age.
• HB 32: Introduced by Del. Joseph Lindsey, the bill allows a person convicted of a misdemeanor or nonviolent felony to file for an expungement of court records.
• HB 101: Introduced by Lindsey, the bill would increase the threshold amount of grand larceny from $500 to $750.
• SB 2: Introduced by Sen. Adam Ebbin, the bill proposes the decriminalization of simple marijuana possession to a civil penalty.

All in all, Gilbert chalks his disagreements to the governor’s proposal as a philosophical difference.

“I’m not against minimizing the inequities that may exist, but I don’t know that you resolve those entirely through sweeping policy changes,” Gilbert said. “I worry that chipping away at the edges is a precursor to something more dramatic.”