PDs talk reform: Mandatory minimums, police stops under study

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Virginia’s public defenders are telling reform-minded Democrats the state needs more judges from the ranks of defense lawyers, more discretion for judges and fewer opportunities for pretextual police stops.

Another target of reformers is mandatory minimum sentences for various offenses in the Virginia Code.

Recommendations for change came from a handful of speakers at a House of Delegates criminal justice reform listening session July 29.

Public defenders

Maria Jankowski, Deputy Executive Director of the Virginia Indigent Defense Commission, spoke on behalf of Virginia’s public defenders, calling for more discretion and fewer mandatory sentences.

“We need to change the code for more discretion. Often, prosecutors and judges will say that their hands are tied,” Jankowski told legislators.

In court, defendants and their lawyers often face judges who come from the other side of the criminal justice system, Jankowski said. The legislature has a track record of putting prosecutors on the bench, she observed.

Jankowski said she asked public defenders what is their biggest challenge in their local courthouses.

“And over and over again, we heard it was the judges.”

“Every single judge brings with them their own unique background and perspective. And the General Assembly has continuously appointed prosecutors as judges. And this is a challenge,” she said. “More public defenders need to be appointed as judges.”

Jankowski called for reform to discourage “pretextual” encounters, where police stop and investigate people, citing reasons that have no relation to actual purpose of the investigation.

And Jankowski put in a plug for an initiative to eliminate most instances of juries recommending criminal sentences.

“Jury sentencing in Virginia must be only at the request of the accused,” Jankowski said.

Pretextual stops

Public defender Brad Haywood, speaking as executive director of the advocacy group Justice Forward Virginia, hammered on the need to reform what he called “pretextual policing.”

“We need to get rid of the laws that enable police officers to act on their implicit bias, or explicit bias, and not just change the manner in which those laws are enforced.”

Haywood explained that pretexts for investigation are falsehoods that open the door to unconstitutional searches.

“Essentially, what it is, it’s a cover story. It’s a fake reason – you might even call it a lie to cover for the real reason, which by itself would violate the law,” Haywood told the delegates.

He said police will stop a Black person who looks “out of place,” or four young Black men in a car. The law, as it stands, makes it easy, he said. The state Code provides police with “hundreds of options along those lines.” Many of them are “absolutely absurd.”

“For example, if you have rosary beads or air freshener or even a handicapped placard hanging from your rear view mirror, you can be stopped by a Virginia police officer at any time for having an obstructed view from your windshield,” Haywood said.

Police can stop any car, anytime, for a dead center brake light or license plate lights, he continued. Many people don’t even know their cars have rear license plate lights, he said. Other pretexts for stops include aftermarket exhaust, dark-tinted windows or the odor of marijuana, Haywood said.

Officers are trained to seek consent to search once they’ve stopped a vehicle, he added.

“The surest way to reduce instances of excessive force against Black Virginians is to reduce the ability of police officers to interject themselves into the lives of Black Virginians who truthfully are doing nothing wrong,” Haywood said.

Mandatory minimums

The case against mandatory minimums was made by Ashley Nellis, Senior Research Analyst at The Sentencing Project, a Washington-based group advocating for reform in sentencing policy. Nellis said Virginia lags behind other states in reducing the number of mandatory minimums in state law.

“There are a lot of mandatory minimums in the code that could be done away with immediately, and a lot of these pertain to the low level drug violations,” Nellis said.

Nellis said mandatory minimums represent a flawed and punitive public policy. She said most offenders do not expect to get caught and do not have any sense what their punishment might be if they are. Moreover, she said long sentences don’t reduce crime.

“We incarcerate people well past the age that they continue committing crimes, as we know that criminal conduct declines with age, and quite precipitously once a person is in their 30s to their 40s,” Nellis said.

In a response, Republican delegates said the Democratic agenda contained “criminal-friendly measures.”

A news release faulted Democrats for failing to push back or criticize Nellis’ suggestion that the state end mandatory minimum sentences for sexual crimes against children, assaulting a teacher with a weapon and the murder of a law enforcement officer.

The Virginia Crime Commission will study both mandatory minimum sentences and jury sentencing for the 2021 General Assembly session, according to the commission website. The Democratic majority is planning to address many reform initiatives at a special session beginning Aug. 18.