Name: Virginia lawmakers weigh scrapping ‘mandatory minimum’ sentences: Safeguard against leniency or unfair stripping of judicial discretion?
Brand: pilotonline.com
SKU: pilotonline-com-34
Availability: OnlineOnly

critic

Virginia lawmakers weigh scrapping ‘mandatory minimum’ sentences: Safeguard against leniency or unfair stripping of judicial discretion?

preview

AdvertisementBy Daily PressFeb 22, 2021 at 7:41 amVirginia lawmakers are considering scrapping the “mandatory minimum” punishments that have played a prominent role in criminal sentencing for decades.Under state law now, judges are required to impose at least a certain amount of active jail or prison time on a host of crimes — from guns to drugs, from certain DUIs to second and third protective order violations, from raping a child to assaulting a cop.AdvertisementIn other words, judges can’t suspend sentences beyond that point.Supporters of the current system contend the mandates are a necessary safeguard against overly lenient judges, ensuring that adequate jail time is served on particular crimes. But critics assert the rules favor prosecutors and strip judges’ discretion.AdvertisementTwo bills in the General Assembly could dramatically change that system.If passed, the change would apply to thousands of criminal cases statewide annually, and more than 10,000 people already locked up could end up getting new sentences as well.The Senate version of the bill, sponsored by Sen. John Edwards, D-Roanoke, would do away with any and all mandatory minimums in state law. The measure, backed by the Virginia Crime Commission, passed the Senate earlier this month on a 21-17 party line vote, with Democrats in favor and Republicans opposed.Sen. Joe Morrissey, D-Richmond, asserted that state judges don’t like such minimums because “it ties their hands” from fairly considering a case.“I can’t tell you the number of times I’ve heard judges say, ‘I don’t want to do this, but I have to,’” said Morrissey, a former practicing attorney. “I have to give you a mandatory minimum of five years on each of these four counts.’”But Sen. Mark Obenshain, a Rockingham County Republican who ran for Virginia Attorney General in 2013, said the Democratic lawmakers were moving too quickly and “throwing the baby out with the bathwater” on rules designed to protect victims.“We’re making a mistake by doing this in a wholesale fashion,” he said. “There may very well be some serious and significant merit in repealing mandatory minimums for (some) individual offenses. But we ought to be doing this in a deliberate way.”The House version of the bill, sponsored by Del. Mike Mullin, D-Newport News, would scrap mandatory minimums on a much shorter list of crimes — drug crimes, being a habitual offender and a few others — but leaves them intact for most.AdvertisementMullin said if it were up to him, he would scrap all state mandatory minimums, as the Senate version does. “We should trust judges to make the right call,” he said, adding that bad judges can always be removed.But the lawmaker said he didn’t have enough support in the House of Delegates to do away with all of the minimums, leading him to focus mostly on drug laws. That version of the bill passed the House on a 58-42 mostly party line vote.“We have an opportunity right now to eliminate the vast majority of unfair, inhumane, and demonstrably bad rules involving drug crimes,” Mullin said. “The war on drugs has failed. And what we need to do is stop criminalizing addiction, and mental health disorders.”A conference committee of lawmakers from the Senate and House will try to hash out the significant differences between the bills, though it remains to be seen whether a compromise can be struck.But some Senate lawmakers are concerned about scrapping the mandatory minimums for drug laws and then trying to come back later to do the same for gun offenses, DUIs and sex crimes, seen as a tougher sell politically.Sen. Scott Surovell, D-Fairfax County, a backer of the Senate approach, said it’s not the kind of overhaul that should be done in a piecemeal fashion. “If it’s a bad policy, it ought to be eliminated on all offenses,” he told the Daily Press on Saturday. “We need to get rid of all of them and allow our judges and our prosecutors to exercise their discretion.”AdvertisementSurovell said during the Senate floor debate that mandatory minimums got their start in Virginia in the early 1990s. Then-U.S. Attorney General Bill Barr co-wrote in a report at the time that “increasing prison capacity was the best way to lower crime.”“We have the largest prison population per capita, I think of almost any country on the planet,” Surovell said. “And these policies are a big part of it.”Judges in Virginia typically have wide latitude to “suspend” jail and prison time — keep it from being served immediately — or run it concurrently with other sentences. But that can sharply reduce the amount of active time that must be served.But mandatory minimums block judges from going beyond a certain point, as spelled out in the following examples out of many:* Violating a protective order is a Class 1 misdemeanor, punishable by up to a year in jail, but judges often suspend much of that time.There’s no mandatory minimum for a first time offense, but judges must give a defendant 60 days behind bars if someone is convicted of his second protective order violation in five years. And judges must hand down a minimum of six months behind bars if it’s the third offense in that time frame.Advertisement* A defendant convicted of using a gun in a felony — such as a robbery or shooting — gets a mandatory three year prison sentence for the first gun offense and five years on further gun offenses.Those charges can rack up quickly: Someone convicted of robbing three people at gunpoint, for example, is already up to a minimum of 13 years on the gun charges even before being sentenced on what counts as three separate armed robberies.If the person is a convicted felon, too, that’s another five years, bringing the mandatory total to 18 years to serve.* Drinking and driving is a Class 1 misdemeanor punishable by up to a year in jail.Though judges also often suspend much of that time, there’s a mandated five days in jail for reaching a certain elevated blood alcohol level, and 10 days for reaching an even higher level. And it’s a 20-day mandatory minimum if it’s the defendant’s second DUI within five years.* A wide array of drug laws have mandatory minimums. Among many others, there’s a three-year minimum for a second offense of possession with the intent to distribute certain illegal drugs, and a 10-year mandatory minimum for third and subsequent offenses.AdvertisementIf you’re caught with a gun while possessing those drugs with the intent to distribute, it’s a five-year mandatory minimum — and 10 years if you have two guns.* There’s a six-month mandatory minimum for assaulting a police officer, a one-year minimum for shooting at a car or aggravated DUI manslaughter, and five years for taking a gun to school and displaying it in a threatening way to others.* If an adult is convicted of rape, sodomy or object sexual penetration of a child 12 and under, that’s a mandatory minimum of life in prison. Certain child pornography charges carry a mandatory five-year minimum.And the list goes on, with dozens of other crimes.Surovell, a Northern Virginia defense lawyer in his normal job, said prosecutors’ practice of stacking up of crimes with mandatory minimums in the indictments can put undue pressure on defendants — even innocent ones — to plead guilty to the crimes.“The consequences of losing are far, far, far too great,” he said. “Mandatory minimums effectively give our Commonwealth’s attorneys nuclear weapons to use in negotiations.”AdvertisementMorrissey gave an example of six counts, each carrying a minimum of five years to serve. “They’ll say you’re facing 30 mandatory years — or you accept this plea of four years,” Morrissey said.The current mandatory minimums for DUI cases, Surovell said, “make lawyers a lot of money.” While a plea agreement in such cases might have been reached 20 years ago, he said, now the automatic jail time for some DUI charges force defendants to dish out cash.“Now they are terrified of going to jail, and they will pay a lot of money to fight it,” he said of clients.Obenshain, the Rockingham County Republican, said the rules were built up over time, with lots of painstaking discussion by lawmakers over the years, and should’t be summarily wiped away in one fell swoop.He went through various mandatory minimums — repeatedly violating protective orders, child pornography, raping a child — and asked the bill’s sponsor, Edwards, to confirm that those would be wiped away with his bill. Edwards said yes.Advertisement“We spent a lot of time working on trying to protect families from household predators — people who were victimizing members of their household, people who were repeatedly violating these protective orders,” Obenshain said. “And we determined that they needed to go to jail ... They needed to be separate. And we’re apparently going to do away with that.”So, too, with other crimes, he said. Obenshain warned that there could be “a balkanization of Virginia when it comes to sentencing,” with some parts of the state sentencing differently than others.DailyStart your morning in-the-know with the day's top stories. &gt; Sen. Siobhan S. Dunnavant, R-Henrico, the sister of Virginia Beach Sheriff Ken Stolle and Commonwealth’s Attorney Colin Stolle, asserted that scrapping mandatory minimums was being rushed — without evidence that they don’t work.“I know you have an agenda, but you should be informed by evidence, and by best practices and by the subject matter experts,” she told Democratic lawmakers. “And with all due respect to the legal minds we have here, none of us are.”If there was “an authentic conversation” and some data to back the change, she said, “I think you would find some interest” from other lawmakers “to do the right thing based on evidence.”AdvertisementBut Edwards, for his part, said he hoped lawmakers would “recognize the importance of this from the standpoint of basic due process,” and “not straitjacket judges and juries, but rather allow judges and juries do their jobs.”The lawmakers to serve on the conference committee to hash out differences between the House and Senate versions of the bill have not yet been announced.Peter Dujardin, 757-247-4749, Advertisement

AdvertisementBy Daily PressFeb 22, 2021 at 7:41 amVirginia lawmakers are considering scrapping the “mandatory minimum” punishments that have played a prominent role in criminal sentencing for decades.Under state law now, judges are required to impose at least a certain amount of active jail or prison time on a host of crimes — from guns to drugs, from certain DUIs to second and third protective order violations, from raping a child to assaulting a cop.AdvertisementIn other words, judges can’t suspend sentences beyond that point.Supporters of the current system contend the mandates are a...

Virginia lawmakers weigh scrapping ‘mandatory minimum’ sentences: Safeguard against leniency or unfair stripping of judicial discretion?

No article scores yet.

CRITIC REVIEWS

PUBLIC REVIEWS