By Ned Oliver
VM – Members of the Virginia Crime Commission voted overwhelmingly this week to endorse legislation stripping all mandatory minimum sentences from state code.
The sweeping proposal, which lawmakers plan to introduce when the General Assembly convenes later this month, would eliminate mandatory jail and prison terms attached to 224 offenses that range from drunken driving to child rape.
Lawmakers on the commission who backed the proposal — all Democrats — called it an important step to restore sentencing discretion to local judges and juries.
“I think mandatory minimums skew our system,” said Del. Mike Mullin, D-Newport News, an assistant commonwealth’s attorney in Hampton, during the meeting. “We appoint judges to represent their communities and they are on the ground.”
The commission also voted to endorse legislation that would allow some prisoners serving felony mandatory minimum sentences to petition a judge to reconsider their sentence.
The Crime Commission’s staff said research on the effectiveness of mandatory minimums is inconclusive, but broadly proponents of the policy argue they deter crime, eliminate inequities in sentencing and guarantee a minimum punishment.
Opponents argue they don’t deter crime, have not actually eliminated sentencing disparities and “inflict a burden on a defendant’s right to trial.”
Most of the mandatory minimum sentences on the books in Virginia address driving while intoxicated, narcotics, child pornography and weapon violations, according to the research undertaken by the Crime Commission, though they said the offenses make up a relatively small proportion of convictions in any given year, accounting for just 3 percent of convictions in the past five years.
The commission’s research did find that Black inmates were more likely than White inmates to be serving time on the charges.
About 4,000 prison inmates are currently serving sentences that stemmed only from a charge with a mandatory minimum — most for drug distribution, driving with a revoked license, possessing a firearm after a felony conviction and simple assault on a law enforcement officer.
The commission quickly ruled out considering whether to maintain mandatory minimums on a charge-by-charge basis. “I don’t know how we’re going to decide which ones to keep and which ones not to keep,” said Sen. John Edwards, D-Roanoke. “You either do it or you don’t do it.”
Only two of 11 members present voted against the proposal. Del. Les Adams, R-Pittsylvania, the only GOP member of the commission, argued that since available research is inconclusive, it isn’t the place of the Crime Commission to weigh in.
“I don’t know what would justify it coming from the Crime Commission as something that’s evidence based, based on the fact that so much of the evidence is inconclusive,” he said.
The other opposing member, Norfolk Police Chief Larry Boone, said he saw room for reform, but in particular opposed the elimination of the mandatory minimum sentence attached to assault on a law enforcement officer, which was a subject of intense debate during a special legislative session last year.
“I don’t embrace the notion that we make it a blanket position to do away with assault on law enforcement,” he said, “particularly where it involves injury.”
Mandatory minimums have become a focus of advocates pushing for criminal justice reform. Andy Elders, a public defender in Fairfax County who serves on the board of Justice Forward, said prosecutors often use the threat of charges with long mandatory minimum sentences attached to pressure defendants to take plea deals.
“Nothing is more important than the right of accused to say ‘I didn’t do this and I want my day in court,’” he said.
A group of 12 commonwealth’s attorneys pushing for criminal justice reform, Virginia Progressive Prosecutors, sent a letter to lawmakers Monday reiterating their support for eliminating mandatory minimums.
“Mandatory minimums prevent judges from taking an individualized, holistic approach to each sentence based on the specific circumstances of a given case,” they wrote. “They lead to the irrationally lengthy prison sentences that fuel mass incarceration while exacerbating the racial and socioeconomic inequities that have come to characterize our criminal justice system. Banning mandatory minimums will make our communities safer and stem the tide of mass incarceration.”
Republican Minority Leader Todd Gilbert, R-Shenandoah, a former prosecutor, blasted the decision in a statement.
“This is by far the most egregious ‘soft on crime’ proposal yet in the Democrats’ attempts to make life easier on criminals. This proposal to retroactively revisit imposed sentences would drag the victims of rape, assault, child pornography and hate crimes, as well as the families of murder victims, back into court as these criminals are re-sentenced. Victims would face an impossible choice — relive the worst day of their lives once again, or potentially let their tormentors walk free,” Gilbert said, contending that removing mandatory minimums for gun offenses would also “take away a proven tool in actually reducing gun crimes and improving the quality of life in the most dangerous neighborhoods in our commonwealth.”