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Virginia lawmakers vote to reform 224-year-old jury sentencing law NED OLIVER
Virginia lawmakers passed a closely watched bill Friday aimed at ensuring people can exercise their right to a jury trial without risking much steeper punishments. Criminal justice reform advocates frequently called the legislation one of the most important changes the General Assembly could adopt during a special legislative session that has been largely devoted to issues of policing, courts and prisons. “Everything else is window dressing compared to this bill,” said Sen. Joe Morrissey, D-Richmond, who proposed the measure. “The result will be an end to excessive sentencing in the Commonwealth of Virginia.” Virginia and Kentucky are currently the only two states where if a defendant or prosecutor asks for a jury trial, the jury must also hand down the sentence. If signed by the governor, Morrissey’s bill will transfer sentencing responsibilities to the judge unless a defendant specifically requests it be set by the jury. The state’s unusual approach to sentencing dates to 1796 and has been called the jury penalty because it often leads to criminal sentences that are significantly longer than defendants would have faced if they had opted for a trial before a judge
The Virginia House of Delegates begins their special session inside the Siegel Center in Richmond, Aug. 18. Pool PHOTO or taken a prosecutor’s plea deal. That’s because unlike judges, juries must hand down sentences that fall within statutory sentencing ranges. And unlike judges, juries aren’t provided the sentencing guidelines judges get that tell them what the typical punishment is for a similarly situated defendant. That means a defendant facing a robbery or drug distribution charge would face a five year mandatory sentence if a jury finds him guilty, whereas a judge issuing the sentence could suspend time based on the facts of the case and mitigating circumstances. Juries exceeded sentencing
guidelines in half of the cases they heard in 2018, according to the Virginia Sentencing Commission, which found they issued prison sentences that were on average four years longer than would have been recommended. Judges, meanwhile, handed down sentences that exceeded guidelines in just 9 percent of cases. Lawmakers and advocates say prosecutors often take advantage of the arrangement by tacking on charges with steep mandatory penalties and threatening to demand a jury trial if the defendant doesn’t accept a plea agreement, arguing it contributes to Virginia’s
higher than average incarceration rates. “Most defendants plead out, even when they did not do it. This is a very difficult decision people have to make,” said Del. Don Scott, D-Portsmouth. “This would be a revolutionary change in the way we do sentencing.” While the bill won limited bipartisan support, Republicans mostly opposed the measure, as did most prosecutors in the state. They warned that the reform could lead to a huge uptick in jury trials that would require more judges, more courtrooms and more prosecutors — all things that would cost the state millions of dollars. “We don’t have that much money in the budget,” warned Del. Barry Knight, R-Virginia Beach, urging lawmakers to delay the bill’s passage until a more complete study of the potential costs. The Virginia Association of Commonwealth’s Attorneys estimated the change could lead to an eightfold increase in jury trials, writing in a letter to lawmakers that without additional money to hire more prosecutors, they’d be forced to issue plea deals “that are not commensurate with the crime or the harm inflicted upon the victim.” “These plea offers would be dictated by the availability of
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2 • Oct. 21, 2020
Political fight over redistricting delays eviction, utility cutoff protections in budget NED OLIVER Cecelia Woodard gave a nervous glance down the road every time she heard a car approach. It was Tuesday morning and the sheriff was scheduled to arrive to evict her from the apartment she shares with her 64-year-old mother, who had left a few minutes earlier with a plan to donate plasma in hopes of scraping together money for a hotel room. Woodard had only learned about the national eviction moratorium imposed by the Centers for Disease Control a few days earlier from Delaware’s unemployment office, which she had called in a desperate attempt to get information about the status of her unemployment claim after being unable to get through to anyone in Virginia. It didn’t help, she said: Her landlord ignored the declaration she sent that was supposed to keep her in her home. And she had never heard that the state launched a rent relief program designed to help people just like her avoid homelessness by covering back rent accrued during the coronavirus pandemic. All she knew was that she couldn’t find a job, couldn’t pay rent and was about to move into a Nissan sedan with her mom and as many of their possessions as they could fit. “When they come to lock the doors, I still don’t have any way to pay,” she said, her voice softening. “So I guess we’ll be living outside.” Virginia lawmakers convened a special legislative session this summer with plans to address the economic fall-out from COVID-19. And they’ve now agreed on policies that would help people exactly like Woodard, including unambiguous eviction protections that would have prevented her case from ever
being heard in court, alerted her to the rent relief available and even required her landlord to help her apply. The only problem: They haven’t gone into effect yet. What began with promises of quick action to address urgent problems has devolved into a sprawling, eight-week exercise marked by Democratic infighting, long-winded debates, choppy transitions to new workspaces and part-time lawmakers balancing their legislative duties with day jobs and pandemic-era parenting duties. The latest delay arose from an internal Democratic feud over the upcoming ballot referendum proposing a bipartisan redistricting commission, which most Senate Democrats support and most House Democrats oppose. Unable to agree on whether language dealing with that commission’s setup should or shouldn’t be in the budget, negotiators chose to keep the budget process open until after the Nov. 3 redistricting referendum is over. That will allow Gov. Ralph Northam to amend the budget later with whatever redistricting language the House and Senate can agree to. That also means it will take longer for everything else in the budget, including the COVID-19 relief, to become law. With the session dragging into fall, Northam has had to ask state regulators multiple times to extend the moratorium on utility shutoffs, saying he hoped the General Assembly would finish soon. The State Corporation Commission granted one of those requests on Sept. 15. But the commission later announced there would be no more extensions, after saying repeatedly it is the General Assembly’s job to pass a long-term solution to the
A sheriff's deputy in Newport News hands eviction paperwork to Cecelia Woodard, who says she’s been unable to find work during the pandemic and is five months behind on her rent. PHOTO: VM crisis. Some municipal utilities, which were never subjected to the original ban, have already said they are resuming shutoffs for delinquent accounts. Once enacted, the new budget would stop them. The Supreme Court of Virginia also refused to extend a courtordered eviction moratorium that it had granted to give lawmakers time to pass legislation addressing the issue. As the Sept. 7 expiration date approached, Northam wrote that it had become clear that lawmakers would not finish their work before it lapsed. Had the court agreed to his request to continue the moratorium to Oct. 1, the General Assembly would now have also missed that deadline, too. The legislative discord began almost as soon as lawmakers arrived in Richmond. The session began on Aug. 18 with the House and Senate unable to agree on basic rules for how the proceedings would go and what topics would be addressed. For social distancing purposes, the Senate moved from the Capitol to the Science Museum of Virginia, a space it would occasionally have
to vacate for weddings and other booked events. Speaker Eileen Filler-Corn, D-Fairfax, insisted on the House working remotely as a safety precaution, prompting howls from Republicans who insisted on a five-day delay before the change could be implemented and later complained they had poor Internet connections and couldn’t get into virtual meetings. At the Capitol, the House and Senate can communicate with each other via short walks across the hall. Meeting in different locations via different methods, combined with generally frosty relations between Democratic leaders, also seems to have complicated the flow of business, especially a weighty package of criminal justice reform legislation. House and Senate Democrats agreed broadly before the session began to take on the issues amid widespread protests that followed the death of George Floyd in Minnesota. But the two chambers often found themselves at odds over the details and scope of the
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(from page 1) resources rather than by justice and public safety.” Some Democrats in the House shared the concerns about the potential expense and on Friday — the last day of the special session — its passage appeared uncertain. But ultimately, they agreed to the measure with the addition of an enactment clause that will delay its effective date until July 2021, giving lawmakers time to make budget adjustments if necessary. Supporters of the bill, which included a contingent of commonwealth’s attorneys from some of the state’s most populated areas, said the concerns about an explosion of jury trials were misplaced, noting that Virginia would simply be adopting the system already used in most states.
And even if the number of jury trials did increase, that would only prove that the existing system was preventing defendants from exercising their constitutional rights. They said a more likely outcome was that prosecutors would have to begin issuing more appealing plea offers to defendants — not because they didn’t have the resources to try the case, but because they were commensurate with what a defendant could expect from a judge. “It’s my prediction that once we have a system that has some actual balance to it, where both sides have a decent amount of leverage, they’re going to offer some fair dispositions and we’ll see just as many cases going to trial every day,” said Sen. Scott Surovell, D-Fairfax. “Right now we have a system where one side has a sledgehammer and the other side has some talking points.”
Oct. 21, 2020 • 3
Va. preserves adult Medicaid benefit
Virginia’s pared-down state spending plan retained one major priority for health advocates — a dental benefit for adult Medicaid patients. General Assembly budget negotiators restored roughly $17.5 million in state funding to implement the coverage by July 1 next year. The two-year spending agreement, announced Wednesday afternoon, still has to go for a final vote before state legislators — and be signed by Gov. Ralph Northam, who can veto or request changes to specific spending items. But safety net providers and advocates for low-income patients were optimistic that the dental benefit — “long overdue in Virginia,” according to Thomas Wilson, executive director of the Northern Virginia Dental Clinic
— would pass after more than two decades of activism. “When I got here 24 years ago, Virginia was one of only seven states that never had a dental benefit in its Medicaid system,” added Wilson, whose clinic serves adults in Northern Virginia with an income at or below 200 percent of the federal poverty level. “So, it’s about time we step up and provide that.” Currently, the state offers comprehensive dental coverage to pregnant women and children until they reach the age of 20. But without an adult benefit, hundreds of thousands of Virginians are left with plans that cover nothing except emergency extractions. Providers say the system creates huge problems for patients and for medical spending. -VM
MARK WARNER IS A LEADER WHO WILL FIGHT FOR US Mark Warner will keep fighting for Virginians to have access to quality and affordable health care. Mark Warner believes we should hold police officers who break the law accountable. That’s why he worked on the Justice in Policing Act. And during this pandemic, Mark Warner secured financial support for our small businesses to rebuild and reopen safely.
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4 • Oct. 21, 2020
The LEGACY
Op/Ed & Letters “Elect public officials who are committed to stop police killings” BEN JEALOUS Millions of Americans have turned out in big cities and small towns to protest the killings of unarmed civilians—often Black people—at the hands of law enforcement. If we want our demands for justice and accountability to lead to real policy change, we need to build on that activism by electing public officials with the commitment to reform law enforcement and the courage to act when police abuse the power of their badge. In presidential election years, most of the energy and focus goes to the top of the ticket. And that’s essential this year. But we can’t ignore the fact that we have been through a spring and summer of traumatizing televised murders of Black people. We are still learning the truth about the deeply disappointing decisions not to indict police officers involved in shooting and killing Breonna Taylor in her own home. We need to make change at the local level, where those decisions are made. People For the American Way has endorsed more than 100 The LEGACY NEWSPAPER Vol. 6 No. 42 Mailing Address P.O. Box 12474 Richmond, VA 23241 Office Address 105 1/2 E. Clay St. Richmond, VA 23219 Call: 804-644-1550 Online www.legacynewspaper.com
problematic officers, recruiting good officers, reallocating police budgets, cultural competency and deescalation training, and other issues. young progressive candidates who have demonstrated dedication to creating public safety solutions that reflect the values of fairness, justice, and equal treatment under the law. The “Stop Police Killings” slate is designed to bring attention and support to candidates for local and state office who understand the impact of police killings on communities of color and who are passionate about pursuing justice. Hundreds of applicants answered questions about personal experiences that motivated them to stop police violence and their positions on policies and practices that limit unnecessary police contact, psychological screenings for police officers, removing
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We have identified great candidates in key metro areas across 25 states. They’re running to
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Our health is on the ballot.
Let’s use our power now. Black Americans are being hit the hardest by COVID-19. Congressional Democrats are fighting to keep Black families safe and working to protect and lower the cost of health care. This year, we vote for our rights, for our lives, for our future. People are already voting. Our community is showing up. Make a plan to vote and encourage your community to do the same.
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Oct. 21, 2020• 5
P.T. Hoffsteader, Esq.
God doesn’t like ugly Being a Black male octogenarian, I have never experienced times like these. Being old school, I have seen an awful lot of life, but these political times are overwhelmingly divisive, disruptive and destructive to say the least. Accordingly, I have never encountered a political climate like the present one. Being a child of the 1940s, it was instilled in me that ‘God don’t like ugly!’ And, acting ugly was the way you talked and acted towards others. Therefore, it is my belief that President Trump, oftentimes and unnecessarily, acts ugly towards others. On a regular basis, Trump acts as an agent of anguish, anger and antagonism. Consistently, Trump uses his office and personality to bully, badger and batter others. Unashamedly, Trump seems to get a thrill and delight out of doing this to others, especially his critics, opponents and adversaries. By his words, actions and deeds, Trump promotes division, disruption and devastation among the nation’s populace. At this time of racial unrest, economic anxiety and pandemic catastrophe, we need positive leadership and national unity more than ever. And, unfortunately, Trump is ill equipped for this
challenging task, which leads us to a doorway of derision and down a staircase to (eventual) failure. It did not have to be like this. We could – and should – have done better. Just think within the past several days, Trump has been guilty of: (1) ordering the DOJ/AG Bill Barr to prosecute and lock up his “enemies” (Biden, Obama, Hillary Clinton, etc.); (2) saying that Democrats and Liberals are Communists and traitors/enemies of the State; (3) refusing to relinquish power and the presidency should he lose reelection; (4) denying calls to refute, saliently and unequivocally, white nationalist groups such as the so-called Proud Boys, Boogaloo Boys, and Michigan Militias, among others. As I say, it doesn’t have to be this way. And, we could – and should – do better for the sake and success of our country and democracy as a whole. It is always us vs. them: adversaries and opponents are usually casted as enemies of America, fake news, and the deep state. Supposedly, these others don’t love America and are disloyal and unpatriotic. Of course, this keeps us divided as a united states and cohesive citizenry. As Trump often says, “it is what it is.” John L. Horton Norfolk
(from page 4) become mayors, district attorneys, city councilmembers, county commissioners, and state legislators. We’re proud of the candidates who made it onto our slate. It includes people like Stephanie Morales, Commonwealth’s Attorney for Portsmouth, Virginia, who successfully prosecuted a police officer who killed an unarmed Black teenager. “Public servants have a responsibility to protect their communities,” she said at a recent event announcing the slate. “The charge to imagine what public safety looks like in our country is long overdue, and I’m pleased to join this roster of incredible candidates to hold violent police officers who violate the law criminally accountable for terrorizing Black and brown communities.” Christian Menefee, a candidate for Harris County Attorney in Texas, calls this “a pivotal moment in our country,” adding that “we cannot and should not sit on our hands waiting for the federal government to act. It’s time for local leaders to step up and protect Black and Brown communities.” Brandon Scott, who is running to become mayor of Baltimore, says, “We can end police killings of unarmed civilians and begin
to rebuild trust so that law enforcement is focused on doing the things necessary to keep all communities safe.” Nakita Hemingway is running for the Georgia legislature to represent an area near to the spot where Ahmaud Arbery was killed. Her desire to make change has been influenced by her own interactions with the criminal justice system as a Black woman. People For the American Way’s Next Up Victory Fund will support candidates in competitive races through donations, earned media support, social media, and engaging our members and activists. I want to encourage everyone who wants to help bring an end to unjust police killings to take a look at our slate and find ways to support these candidates and others in their local communities who are committed to reimagining public safety. We have changed the public conversation about policing and justice by taking to the streets. Now let’s change the laws and policies that are standing in the way of justice by taking the fight to the halls of power. That’s what elections are for. Jealous serves as president of People For the American Way and People For the American Way Foundation.
6 • Oct. 21, 2020
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(from page 3) Absent the dispute, the budget would begin its
journey to the governor’s desk on Friday or Saturday bills they were considering, leading to when the House and the Senate plan to vote on bitter debates between lawmakers in the the document. But Democrats say what now looks two chambers on issues like qualified immunity and mandatory felony penalties like a three-week delay before it will be sent to Northam is really only going to set them back about that lasted weeks. They finally resolved their differences this 10 days. They say that’s because the technical week, finalizing most of their bills. But as that process of enrolling the massive legal document after work concluded, a new impasse emerged. lawmakers vote but before it is signed by legislative The last-minute budget wrinkle centers leaders and sent to the governor always takes about two weeks and will continue as scheduled. around language inserted by the Senate “Within a week of the election, it could still go into that isn’t critical to the constitutional amendment on the ballot. It mostly puts pieces in place to begin the redistricting commission’s creation if voters decide they want it, specifying that the political leaders and retired judges setting up the commission would have to take racial, geographic and gender diversity into account and could not fill the seats with political aides, family members or lobbyists. But as many House Democrats work to convince Democratic voters to reject the commission idea, which would leave mapdrawing power with the General Assembly, they didn’t want to agree to anything that might signal their approval. The language also cuts against their arguments that the commission could lack diversity and be dominated by political insiders. “Most of our caucus, including me, are strongly against anything that would be perceived as improving it,” Del. Mark Sickles, D-Fairfax, vice chairman of the Appropriations Committee, told the Richmond Times-Dispatch. A standalone bill similar to the redistricting language at issue in the budget easily passed both chambers during the regular legislative session, but House Democrats blocked its final passage. In an interview last week, Del. Marcia Price, D-Newport News, said she felt it was unnecessary to revive a highly contentious issue in a budget lawmakers were trying to pass quickly. “I’m fully willing to vote on a budget without it so that we can keep the conversation separate,” Price said. “So that we can focus on the emergency that is in front of us.” Lawmakers in both chambers pushed back against the idea that the redistricting debate will significantly delay eviction and utility cutoff protections — the two primary emergency programs that are included in the budget and will take effect as soon as the document is signed by Northam.
Oct. 21, 2020• 7 effect,” said Sen. George Barker, D-Fairfax, who was one of the lawmakers who negotiated the eviction protection language. Yet advocacy groups that pushed for the language said any delay at this stage in the session would be disappointing given how long it’s taken lawmakers to finish their work. They said that while they had hoped for stronger protections, the program outlined in the budget represents an immediate improvement over current eviction rules that don’t require landlords to notify tenants of their rights or participate in the state’s rent relief program.
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