The State Capitol. Photo by Markus Schmidt.

RICHMOND – A total of 224 criminal offenses currently carry mandatory minimum sentences under Virginia law, including 162 felonies and 62 misdemeanors. But a Senate panel on Monday approved legislation that would repeal these mandatory minimums, with the exception of one – the murder of a law enforcement officer, which is punishable by life in prison. The bill also directs the Secretary of Public Safety and Homeland Security to establish a work group to evaluate the feasibility of resentencing of persons previously convicted of a felony offense.

State Sen. John Edwards, D-Roanoke.

The proposed legislation is based on a similar measure sponsored by state Sen. John Edwards, D-Roanoke, during the 2021 session. But Edwards’ bill, and its counterpart in the House of Delegates, died in conference last year after the lawmakers failed to agree on finalized language, despite widespread efforts from the Democratic majorities in both chambers to advance issues related to criminal justice reform, including the repeal of the death penalty in Virginia. 

Edwards brought his measure back this year and his proposal was merged with Senate Bill 104, a near identical measure sponsored by Sen. Joe Morrissey, D-Richmond, which the Senate Judiciary Committee – chaired by Edwards – on Monday advanced with a 8-7 vote.

Morrissey told the panel that the bill allows judges some flexibility to sentence individuals without the constraints of minimum sentences. “For far too many times there are circuit court judges that have said that they don’t want to do this, but this is a mandatory minimum sentence,” he said, citing a case where a juvenile was convicted to a mandatory 35 years for robbery charges that he had plead not guilty for. The defendant’s three adult associates, Morrissey said, received sentencing ranges between six and 12 years after pleading guilty. 

Mandatory minimum sentencing laws have faced scrutiny in more recent years because they require judges to administer prison terms of a particular length for people convicted of certain federal and state crimes. Critics claim that mandatory minimums effectively remove any consideration of the unique circumstances of the crime or defendant’s history, mandating severe punishments, and it undermines judges’ ability to do their jobs – to judge.

“Mandatory minimum sentences are often a very obtuse way of achieving a balanced policy outcome,” said Sen. Scott Surovell, D-Fairfax. “We elect these judges because we trust their judgment, their temperament, and we think that once they are given the right amount of information, they will reach the right outcome, and mandatory minimum sentences completely undermine that. And if they are bad policy for one crime, they are bad policy for pretty much all of them.”

While mandatory minimum sentencing laws were originally touted as a tool to deter serious crime and eliminate sentencing disparities, advocates for criminal justice reform are concerned that they lead to higher levels of incarceration. According to data compiled by the Vera Institute of Justice, Virginia in Virginia had locked up almost 60,000 offenders – an increase of nearly 300% since 1983. Virginia ranked first among Southeast states in jail population per capita and third in prison population per capita.  African Americans made up 53% of the prison population, but just 20% of the population at large. For the above reasons, several states have repealed their mandatory minimum laws, particularly for non-violent drug offenses. 

Molly Gill, vice president of policy for Families Against Mandatory Minimums (FAMM), a national group fighting to repeal all mandatory minimums, said these sentences are “one size fits all” approach. “Anyone who’s been in the justice system knows there’s been no two cases that are exactly the same, no two people that are exactly the same,” Gill said. “Courts need flexibility to consider differences that matter, like age, mental state, role in the offense, motive for the crime, the profit of the person – these are very important facts that mandatory sentences don’t let judges take into account, and they often send people straight to prison and don’t let courts to consider alternatives that make more sense and that save taxpayers more money,” Gill said.

And Ben Wong with the American Civil Liberties Union Virginia underscored that mandatory minimums have “little to no deterrence effect” on crime, but they “do undermine judicial discretion, they do contribute to our over-incarceration crisis, they do exacerbate racial disparities in sentencing and they do frustrate defendants ‘ constitutional rights.”

Ramin Fatehi of Virginia Progressive Prosecutors for Justice, a group of 12 commonwealth attorneys representing 42% of Virginia citizens, told the Senate panel Monday that mandatory minimum sentences tie the hands of prosecutors and judges, and “thwart the individualized justice” guaranteed under the Constitution. “The idea of flexibility in sentencing and lenience where appropriate, stiff punishments where necessary, is still the right way to go,” he said, adding that mandatories are irrelevant in cases of violent crime where sentences tend to be much higher than the mandatories. “All they do is bind us and bind judges,” Fatehi said.

But not all prosecutors addressing the Senate panel Monday are backing the proposed legislation in its current form. Clarissa Berry, commonwealth’s attorney for Madison County and an advocate with the Virginia Association of Commonwealth Attorneys (VACA), said that while members support the general idea of addressing the problems of mandatory minimums, some prosecutors are concerned about doing so in a way that “does not take into account the underlying reasons for some of the minimum mandatories.” Berry said that while Edwards’ bill does contain some enhancements for gang recruitment, “it does eliminate some other ones, and those are issues that commonwealth attorneys do have concerns about.”

And Nathan Green, commonwealth’s attorney for Williamsburg and James City County, said that prosecutors are opposed to “wide-sweeping elimination” of all mandatory minimums. “Each one of those mandatory minimum sentences were taken up by the General Assembly individually, and the importance of that change of that mandatory minimum being established was addressed individually, and it’s our position that this should be the way that mandatory minimums should be removed,” Green said. 

Law enforcement officers organized under Virginia Sheriffs Association are particularly concerned with the provision that eliminates the minimum mandatory sentence for assault and battery of a law enforcement officer, and for malicious bodily injury, which carries a minimum of just two years. “That gives our members a reason for pause,” said John Jones, the group’s executive director. 

State Sen. Mark Obenshain, R-Rockingham County, said that he was worried about what the repeal of mandatory minimum sentences would mean for offenders violating protective orders, which the bill proposes. “We know from experience, they are going to go right back and re-offend again and again,” said Obenshain. “This bill repeals specifically that mandatory minimum, and in addition it repeals the mandatory minimums for sexual assault and forcible sodomy, among other offenses,” he said. 

After voting in favor of Senate Bill 104, the Judiciary Committee referred the measure to the Senate Finance Committee. 

Markus Schmidt

Markus Schmidt is a reporter for Cardinal News. Reach him at markus@cardinalnews.org.