They point to a growing national movement to remake criminal justice policy, the Democratic majority poised to take control of the General Assembly for the first time since the 1990s, and the election of liberal prosecutors in some of the state’s largest jurisdictions.
State Sen. Scott A. Surovell (D-Fairfax County) said criminal justice reform is one of the top priorities for liberal legislators and Gov. Ralph Northam (D).
“I think we are going to take a hard look at making big changes over the next two years,” Surovell said. “The last time Democrats had control of both chambers, tough on crime was en vogue and [President Bill] Clinton was handing out mandatory minimums like Chiclets. . . . People have realized that having the highest prison population in the world is expensive and ineffective.”
Legislators in both parties said they expect that when the General Assembly convenes in January, it will tackle proposals regarding marijuana decriminalization, bail rules and the reinstatement of parole, which was abolished on new convictions in 1994.
Legislators have also prepared bills that would expand the convictions subject to eventual expungement; reimagine the state’s crime commission as a justice commission also focused on rehabilitation; and create a public defender’s office in Prince William County, the state’s largest jurisdiction without such an office.
Some Republican lawmakers and law enforcement officials are skeptical of plans to overhaul criminal justice policy and of liberal prosecutors’ approach to the job. They argue that some of the ideas floated could increase crime and work against victims.
State Sen. Mark D. Obenshain (R-Harrisonburg), who chairs the Courts of Justice Committee under the present Republican majority, said the legislature has pursued a bipartisan, data-driven approach to criminal justice in recent decades that has helped make Virginia one of the safest states in the country. He said he is particularly worried about changes to parole.
“Some proposals would return us to the policies of the ’70s and ’80s in which Virginia had one of the most liberal parole policies in the country, one in which first-degree murderers were released from prison in less than 10 years,” Obenshain said.
As the legislature begins its work, three liberal prosecutors will be taking office in Arlington, Fairfax and Loudoun counties after their election victories in November. And in Prince William County, a new commonwealth’s attorney favors more-liberal policies than her predecessor pursued.
The prosecutors have promised sweeping changes in their counties and say they will work to push Virginia’s criminal justice policy in a more liberal direction. They have variously pledged to end the use of cash bail, stop pursuing the death penalty and root out racial bias in charging and sentencing.
One initiative that has risen to the top of the list in Fairfax and Arlington is ending the prosecution of marijuana possession. Steven T. Descano, the prosecutor-elect in Fairfax, said it was an issue he heard about again and again, so he decided to make it his first initiative.
“We know marijuana prosecutions do not keep our communities safe,” Descano said. “They waste money that should be going to other things that keep our community safe. They saddle people with a criminal record that’s going to negatively affect them for the rest of their life, and it has a disproportionate impact on individuals of color.”
Virginia Attorney General Mark R. Herring (D) also outlined a platform for criminal justice issues in a November op-ed in the Virginian-Pilot, saying the moment was right for ambitious changes. Herring likewise called for marijuana decriminalization, as well as expanded reentry programs for those leaving prisons and jails, and a more diverse judiciary.
“Virginia cannot have different systems and standards of justice depending on the color of a person’s skin or their wealth,” Herring wrote.
Criminal justice reformers have been frustrated by the pace of change in Virginia, even as the movement has gained steam in many states across the country and at the federal level.
They have highlighted a number of concerns, including Virginia’s incarceration rate, which at 779 per 100,000 is above the national average, and the fact that black residents are three times as likely as white residents to be arrested on marijuana charges.
They also argue that the rules governing what evidence defendants can see as their cases proceed are skewed toward the prosecution.
Surovell said that over the past decade, the state Senate has passed a raft of bills aimed at making the justice system fairer but that those measures regularly died in the Republican-controlled Courts of Justice Committee in the House of Delegates.
Likewise, the Virginia Association of Commonwealth’s Attorneys (VACA), which has been dominated by tough-on-crime prosecutors and has a huge influence over criminal justice legislation, has stymied efforts to loosen laws, such as a 2018 push to decriminalize possession of small amounts of marijuana.
Liberal advocates are hoping both dynamics will change. Democrats will control the Courts of Justice committees in the House and the Senate, and Descano and Arlington County’s recently elected prosecutor, Parisa Dehghani-Tafti, said they hope to soften VACA’s stances. Both will serve on VACA’s board of directors.
Del. Rob Bell (R-Albemarle), who heads the House Courts of Justice Committee, said the new push for criminal justice reform leaves a major piece out of the equation.
“It’s striking how little attention is being paid to crime victims in some of these proposals,’ Bell said.
Bell said he was also troubled by the liberal prosecutors’ pledges to forgo marijuana possession charges.
He said that prosecutors have discretion not to pursue individual cases but that to declare they will not enforce certain statutes violates their duty to uphold the law.
Some prosecutors have faced pushback from judges and police for declining to prosecute marijuana cases. In Virginia, officers can pursue misdemeanor marijuana cases in court, something police union officials in Arlington are discussing.
Arlington County Police Chief M. Jay Farr said that whether his department would take such a position “is really going to depend on the commonwealth’s attorney.”
He said such a policy change would have to come from his office and would not be a step he would take lightly.
“It’s not an ideal situation, and it’s certainly not one that’s conducive to us working well with our prosecutor,” Farr said. But, he noted, it is allowed under state law.
Dehghani-Tafti declined to comment on the prospect of the police taking cases to court.
Descano, too, faces head winds. He said he will have to replace 50 percent of the staff in the office and build bridges to Fairfax County law enforcement, whose unions endorsed his opponent in November.
Rachel Weiner contributed to this report.