2020: The Decade of Criminal Justice Reform?

By: Sidney Balman, Staff Editor

From 2008 to 2016, social justice issues rose to the forefront of domestic policymaking across the United States. The Obama Administration spearheaded criminal justice reform with the enactment of the Fair Sentencing Act, the creation of the Smart on Crime Initiative, and the establishment of the President’s Task Force on 21st Century Policing.[1]A few years later, the Republicans enacted additional reforms, with the First Step Act of 2018[2] leading to the reduction of mandatory minimum sentences and the reduction of sentences for thousands of inmates serving time for drug-related offenses.[3]

The enactment of criminal justice reform bills at the federal level has also led to sweeping changes in several states, but at a much slower pace. New York ushered in the new decade with the quiet implementation of its own criminal justice reforms.[4] As of January 1, 2020, it joined just two other states—New Jersey, and Alaska—and the District of Columbia in abolishing cash bail for misdemeanors and non-violent felonies.[5] New York’s recent criminal justice reform measures, enacted in April 2019, also included changes to the discovery process and new assurances regarding defendants’ right to a speedy trial.[6] Through these reforms the state abandoned its antiquated discovery process and adopted more liberal rules mandating that prosecutors share all discoverable information and materials within 15 days of a defendant’s arraignment.[7] The new speedy trial rules place heightened restrictions on the government regarding trial delays and will hopefully ensure that defendants do not face prolonged pre-trial detention.[8]

In the last month, New York’s criminal justice reforms have also faced consistent backlash, mostly concerning the new bail laws.[9] Police unions and prosecutors’ offices across New York issued public warnings about the ramifications of bail reform.[10] And a secret recording of an Assistant District Attorney providing colleagues with a training on how to undermine the new bail reform laws further evidences the government’s skepticism.[11]

New York law enforcement’s concerns with the new bail reform laws are not unfounded. Take, for example, a recent case where a Brooklyn woman walked up to three Orthodox Jewish women and slapped them in the face while screaming anti-Semitic slurs.[12] The woman was arrested and promptly released without bail, only to be re-arrested the following day for a second assault.[13] Sure this highlights issues with the new bail system, but it also raises questions about the mental health treatment and services that are available, or maybe more accurately unavailable, to the roughly 40% of people locked up and awaiting trial on Rikers Island, one of the nation’s most infamous jails.[14] The need for top-of-the-line mental health services for the millions of incarcerated men, women, and children across the nation is dire. It is certainly a major issue when the nation’s largest mental health facility is a jail, and it is estimated that “between 25 and 40 percent of all mentally ill Americans will be jailed or incarcerated at some point in their lives.[15]

In the same article highlighting the assault on the Orthodox Jewish women in Brooklyn, the New York Times Editorial Board wrote, “Democrats should grow a spine, stand up for the law and reassure the public that they are at no increased danger. To do that, they must ensure that jail is not the only answer to public safety. The governor, mayor and legislature can devote more attention to the state’s supervised release programs and mental health system.”[16] Yet the law enforcement community’s primary concern with the new bail rules rises from the fact that pre-trial release is now assessed in New York according to flight risk and not public safety.[17] Including the risk to public safety seems like a logical fix, one that was introduced federally in the Bail Reform Act of 1985 as a factor in determining whether pre-trial detention is warranted.[18]

Back in Virginia, the General Assembly is preparing to tackle its own criminal justice reforms after the 2019 election shifted the majority in the state house in favor of the Democrats.[19] On January 3, Governor Northam released his 2020 criminal justice reform plan, which includes efforts to decriminalize marijuana possession, change the state’s approach to parole, and raise the threshold for felony larceny charges.[20] Regarding marijuana possession, Governor Northam wants to align Virginia with progressive states across the country by making simple marijuana possession punishable by a $50 civil penalty.[21] Jenn Michelle Pedini, Executive Director of the Virginia branch of the National Organization for the Reform of Marijuana Laws (NORML), said, “with the new majority and the governor prioritizing this issue I think it is safe to assume that such a bill will succeed this session.[22]

While parole was officially abolished in Virginia in 1995, thousands of aging inmates who were sentenced at least twenty-five years ago continue to serve sentences with the opportunity for parole.[23] Governor Northam would like to include age and other discretionary criteria in the decision-making process for parole-eligible inmates.[24] Finally, the increase in the felony larceny threshold from $500 to $1,000 would align Virginia with the policies of many other states and would help prevent first-time offenders from living the rest of their lives with the mark of a convicted felon.[25]

Governor Northam also announced several smaller scale criminal justice reform proposals, such as legislation that prevents driver’s license suspensions for people who fail to pay fines; eliminates the suspension of driver’s licenses for nondriving offenses; and changes to the process through which inmates earn community service hours.[26] Additionally, the Virginia Democrats will seek to provide much needed relief to the incessant strains on the criminal defense bar with a proposal that would add 59 new public defender positions across the state and $2.7 million to establish a new public defender’s office in Prince William County.[27]

However, similar to New York, Virginia’s Democrats face increasing backlash regarding these proposed reforms, specifically regarding the parole eligibility proposals.[28] Critics of the proposal argue that reforming the state’s parole rules will release violent felons back into society and force families to relive the horrible tragedies they endured at the hands of those parolees.[29] But, as Virginia’s House Majority Leader, Delegate Charnielle Herring, recently stressed, the reality is that these bills are focused on correcting errors made by Virginia’s courts and reestablishing the integrity of the judicial system.[30]

The next few months will serve as a litmus test for Virginia, as only time will tell whether the Democrats can pass a more progressive agenda through the state capitol in Richmond. But with the red flag gun control law’s recent passage through the Virginia Senate, it looks like the Virginia Democrats may be able to set the agenda for the remainder of the term.[31] So far, several states have started the new decade off strong, but it remains to be seen whether 2020 will set the tone for sweeping nationwide criminal justice reforms.

[1] Criminal Justice Reform, The White House: President Barack Obama, https://obamawhitehouse.archives.gov/issues/criminal-justice-reform. (last visited Jan. 27, 2020).

[2] Chris Mills Rodrigo, Trump Signs Criminal Justice Reform Overhaul, The Hill (Dec. 12, 2018), https://thehill.com/homenews/administration/422517-trump-signs-criminal-justice-reform-bill.

[3] Matt Zapatosky, 3,100 Inmates to be Released as Trump Administration Implements Criminal Justice Reform, Wash. Post (July 19, 2019), https://www.washingtonpost.com/national-security/3100-inmates-to-be-released-as-trump-administration-implements-criminal-justice-reform/2019/07/19/7ed0daf6-a9a4-11e9-a3a6-ab670962db05_story.html.

[4] Highlights of the FY 2020 Budget, N.Y. St., https://www.ny.gov/fy-2020-new-york-state-budget/highlights-fy-2020-budget#justice-for-all-new-yorkers. (last visited Jan 27, 2020).

[5] The State of Bail: No Simple Solution to Reform, Vera, https://www.vera.org/state-of-justice-reform/2018/the-state-of-bail. (last visited Jan. 27, 2020).

[6] Highlights of the FY 2020 Budget, N.Y. St., https://www.ny.gov/fy-2020-new-york-state-budget/highlights-fy-2020-budget#justice-for-all-new-yorkers. (last visited Jan 27, 2020).

[7] Id.

[8] Id.

[9] Opinion, Democrats Run From Their Own Shadows, N.Y. Times (Jan. 13, 2020),  https://www.nytimes.com/2020/01/13/opinion/new-york-bail-reform.html.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Matt Ford, America’s Largest Mental Hospital is a Jail, The Atlantic (June 8, 2015), https://www.theatlantic.com/politics/archive/2015/06/americas-largest-mental-hospital-is-a-jail/395012/.

[16]  Opinion, Democrats Run From Their Own Shadows, N.Y. Times (Jan. 13, 2020),  https://www.nytimes.com/2020/01/13/opinion/new-york-bail-reform.html.

[17] Id.

[18] Bail Reform Act of 1984, 18 U.S.C. § 3142(e)(2) (2015).

[19] Trip Gabriel, Virginia Election: Democrats Take Full Control of State Government, N.Y. Times (Nov. 5, 2019), https://www.nytimes.com/2019/11/05/us/politics/virginia-elections.html.

[20] Mike Murillo, Va. Governor Unveils Criminal Justice Reform Plans for 2020, WTOP (Jan. 3, 2020), https://wtop.com/virginia/2020/01/virginias-governor-announces-his-criminal-justice-reform-plans-for-the-new-year/.

[21] Id.

[22] Daniella Cheslow, Virginia Governor Makes Marijuana Decriminalization Top of Legislative Agenda, NPR (Jan. 6, 2020), https://www.npr.org/local/305/2020/01/06/793924083/virginia-governor-makes-marijuana-decriminalization-top-of-legislative-agenda.

[23] Mike Murillo, Va. Governor Unveils Criminal Justice Reform Plans for 2020, WTOP (Jan. 3, 2020), https://wtop.com/virginia/2020/01/virginias-governor-announces-his-criminal-justice-reform-plans-for-the-new-year/.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Cameron Thompson, House advances Northam’s criminal justice reform bills: ‘We have to correct a wrong, WTVR (Jan. 24, 2020), https://wtvr.com/2020/01/24/criminal-justice-reform-bills-include-changes-to-parole-mandatory-minimum-sentences/.

[29] Id.

[30] Id.

[31] Gregory S. Schneider, Virginia Senate Approves ‘Red Flag’ Law Allowing Temporary Seizure of Guns From Someone Deemed a Threat, Wash. Post (Jan. 22, 2020),  https://www.washingtonpost.com/local/virginia-politics/virginia-senate-approves-red-flag-law-allowing-temporary-seizure-of-guns-from-someone-deemed-a-threat/2020/01/22/46dc124c-3d2d-11ea-b90d-5652806c3b3a_story.html.

 

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