The words of the formula are the same. But the old result, failure of criminal law reforms in a subcommittee long called “the killing fields,” is changing now that Democrats have won control of the General Assembly.
The words addressed to a legislator proposing a new law — “What is the problem and how does your bill fix it?” — echo a traditional formula set for two decades by GOP chairs of the House of Delegates’ criminal law subcommittee, a key General Assembly gatekeeper.
The result, however, is leading the panel in new directions.
Take, for instance, one perennial, legislation that would require the Virginia State Police to report when hate crimes are sparked by bias based on sexual orientation or gender identification.
It has always died in the subcommittee in years past — and in the House of Delegates, that pretty much stops a bill.
But this week, when a somewhat resigned Steve Rossie, lobbyist for the Family Foundation, stepped up to the lectern to complain that the measure was a slippery slope to criminalizing thought, he drew a sharp rebuke from the new chairman, Del. Mike Mullin, D-Newport News.
“The law criminalizes all kinds of thought,” Mullin said. “That’s what premeditated murder is.”
And the subcommittee, which now consists of five Democrats and three Republicans, approved the measure.
Two of the three new Democrats — Del. Jennifer Carroll Foy, D-Prince William, and Del. Don Scott, D-Portsmouth — are lawyers who focus on defending people accused of crime. Scott introduced himself at the subcommittee’s first meeting Wednesday with a promise to bring his experience, as someone who served seven years in federal prison for a drug conviction, to add a new perspective to the panel. The third new Democrat, Del. Karrie Delaney, D-Fairfax, has been a victims’ advocate.
And Mullin is the first prosecutor in at least three decades to lead the subcommittee, a fact that gave some unease to a Democratic caucus eager to tackle criminal justice reform, including changes to parole and mandatory minimum sentences and a fresh look at the trigger for when a theft becomes a felony.
Like his caucus, Mullin is a strong supporter of gun control laws, many of which are likely to end up before his subcommittee.
He’s pushed to stop charging students with a crime for acting up in school, and to encourage principals to find ways of dealing with other disciplinary challenges without calling in the cops.
He backed the 2018 bill that raised the trigger for making larceny a felony, but he wanted to be sure it included some provision for paying back the victim. And he has tried, but didn’t succeed, with an effort to say there should be no statute of limitation on restitution.
“I think the difference is that issues that did not come to us before will come up now,” said subcommittee member Chris Collins, R-Winchester — a defense lawyer who faced off against Mullin in the mid-2000s when the Newport News delegate worked as a prosecutor in Winchester.
Those issues include decriminalization of marijuana, where Collins expects a healthy debate over how much marijuana would be considered a civil offense, subject only to a fine, and how much would be a crime that could be punished by time in jail.
Other issues that Collins and longtime subcommittee member Vivian Watts, D-Fairfax, expect to come up include changes to Virginia’s no-parole law, expungment of criminal records and giving judges more discretion about sentencing or dismissing cases. Raising the trigger that turns theft into a felony is also likely to come up.
But some subcommittee traditions will continue, Watts said.
The biggest is the painstaking parsing of bills that routinely means the panel meets until midnight — this week, that included a lengthy discussion over whether to change the word “shall” to “may” in a bill about fees charged for electronic monitoring. Watts was concerned the wording might allow sheriffs to charge higher fees when the intent was to make sure they were free to waive the fee for a tool sometimes used by mental health courts.
“I went to a small rural school and we had the same teacher in sixth, seventh and eighth grade and what we did was to diagram sentences,” Watts said. “I still do that … when we have one of those sentences that goes on for 10 lines, I want to be sure that what a clause is modifying is what we want it to modify.”
The same attention to detail sparked a long discussion about when it is OK to hold a video hearing for patients in a state mental hospital who were there because they had been found not guilty by reason of insanity.
In the course of that, Carroll Foy talked about how important it can be for a lawyer to be able to whisper advice to a client, while Collins talked about the hours that Central State Hospital staff spend traveling to Winchester for routine status hearings over five years for one of his clients.
Mullin, meanwhile, worried about denying patients’ rights to a full, fair hearing of their cases for release from the hospital.
The result was what he called surgery — basically, the subcommittee cut out sections in the bill that would allow video hearings about sending a person to a mental hospital or that set people free from the hospital.
When Del. Dawn Adams, D-Henrico, presented her bill to do away with the crime of spitting in a public place, saying she had found it “when I Googled ‘stupid Virginia laws,'” she noted a similar Virginia Beach ordinance was ruled unconstitutional in 1989. Del. Rob Bell, R-Albemarle, a 19-year veteran of the subcommittee, quietly said the panel has always focused on fixing problems, not cleaning up dead letters.
“We’re not going to be the code commission,” Mullin replied, referring to the agency that is responsible for such cleanups, which it presents as massive bills that rewrite entire sections of the Code of Virginia.
But he said Adams’ bill addressed a real problem because police sometimes use the law as a reason to stop a person they don’t like the looks of, and told the subcommittee about one recent case in Newport News when such a stop escalated into a confrontation where the spitter ended up with more serious charges.
With that explanation, the bill passed — including with Bell’s vote.
“They used to kill all my bills. I think I’m going to have better luck now,” said State Sen. Bill Stanley, R-Franklin County, a hard-nosed conservative Republican who last year accused Bell and then-subcommittee chair Todd Gilbert, R-Shenandoah County, of exerting dictatorial control for a law-and-order agenda.
Until the change in party control, Bell chaired the House Courts of Justice committee, the criminal law panel’s parent body. Courts of Justice is now headed by Charniele Herring, D-Alexandria. This year, new House Speaker Eileen Filler-Corn, D-Fairfax, kicked Gilbert off the Courts of Justice committee, which means he’s no longer on the criminal law subcommittee either.
Stanley’s bill to end automatic suspension of driver’s licenses when a defendant falls behind paying court fees and fines sailed through the Senate last year with bipartisan support, only to die in the House subcommittee. Democratic Gov. Ralph Northam inserted language in the budget to end the practice, a move which bypassed the subcommittee and which passed both House and Senate easily.
“Tens of thousands of people got their licenses back, they can legally drive to work,” Stanley said. “What that subcommittee does or doesn’t do can have a huge impact on people.”
Dave Ress, 757-247-4535, dress@dailypress.com
