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December 12, 2018

Virginia, we have a problem. Seventy-two percent of likely Virginia voters responding to a poll commissioned by the ACLU of Virginia agree that the criminal justice system in the Commonwealth works differently for different people depending on their income and skin color. And, nearly nine out of 10 agreed that the system needs to change.

The good news is that we can begin to fix this problem starting with the 2019 legislative session by enacting some modest reforms, and by identifying, encouraging and electing reform-minded candidates for Commonwealth’s attorney and the legislature during the 2019 electoral process.

Our poll found overwhelming support for policy reforms that would improve fairness of the criminal justice system: 84 percent of Virginians polled support reforms targeting racial disparities, and 91 percent support reforms targeting economic disparities. The ACLU of Virginia is pushing for laws that would do just in the 2019 legislative session and beyond.

Just after the first of the year, Virginia lawmakers will make their way to Richmond where they will decide the fate of thousands of bills. In a 45-day session, delegates and senators will have an opportunity to respond positively to this call for reform and finally pass legislation that would reduce racial and economic disparities in our criminal justice system.

Reforming the Pre-Trial Process

First up is reforming the process for pre-trial detention. We need to restore the presumption of innocence to our system and implement policies and practices that ensure the release pending trial of everyone who is not a proven risk to the safety of the community. The first point of discretion in our criminal justice system is the decision whether someone should be released pending trial, and the determination of the conditions for release. Currently, a large percentage of people in our jails are being held pending a trial, many because they cannot meet financial conditions set for their release. At a recent Crime Commission meeting, staff presented data showing a sample of defendants charged in a given month were disproportionately black and male. It is no surprise, then, that the data compiled by the Prison Policy Institute show that the people held in our jails are disproportionately black. And, as we reported in our recent study on women in the criminal justice system, this problem also disparately affects women.

While some of the people being held before trial may be repeat offenders, the majority are people who have never been convicted of any crime and are being held pending trial largely because they cannot meet the financial conditions imposed on their release. And, in most of these cases, detention of these presumed innocent people likely will result in loss of employment and the ability to support their families, and for some caregivers and parents, the custody or legal responsibility for their children.

Right now, Virginia does not have a system to collect or report data concerning decisions about pre-trial release (including who gets held and who gets released, with what crimes were they charged, or what conditions were imposed on release). We know the current process leads to racially and economically disparate results, and, without consistent data collection on these decisions and reporting, we cannot know if the laws we create to address this problem will actually move us any closer to justice and away from costly, unnecessary, and often unfair detention. Delegate Jennifer Carroll Foy plans to introduce a bill to set up a system of data collection to help us monitor pre-trial release and the financial conditions (including secured and unsecured bond requirements) often imposed on release.

Decriminalizing Marijuana

Another policy change that would dramatically reduce racial and economic inequalities in our criminal justice system is decriminalization of simple marijuana possession. Nearly 25,000 people were convicted of marijuana possession last year, with people of color and those with low incomes being disproportionately affected despite similar usage rates regardless of race or income. When asked if we should continue this practice, seven in 10 voters in our poll said no.

From Arlington to Ashland, Williamsburg to Wise, young, old, conservative and liberal – 71 percent of voters support eliminating criminal penalties for the possession or use of small amounts of marijuana. The ACLU of Virginia supports legislation that would eliminate all criminal and civil penalties for simple marijuana possession. To reduce disparate policing, we cannot just change the tool used by police from a criminal to a civil summons, however; we must take the enforcement tool out of their hands, making simple possession a private matter not subject to government sanction.

While it is good to remove the criminal sanctions from the current law and alleviate the collateral consequences of a possible criminal conviction (as SB 997 introduced by Senator Adam Ebbin would), as long as the police have the power to issue a summons for possession or use, they have a means to continue to use “smelling marijuana” as a justification for traffic and street stops and an excuse for disparate policing. Even better than decriminalization would be legalization of marijuana, which the ACLU of Virginia supports along with 63 percent of the likely Virginia voters we polled.

Ending Solitary Confinement

Third, we need to address conditions of confinement including ending the use of solitary confinement in our prisons and jails, particularly given the fact that 40% of the people in our jails have a mental health or addiction problem. Solitary confinement is the practice of isolating people in a small, individual cell 22-24 hours a day and depriving them of human contact, exercise, natural light and other stimulation. On average, we believe that those placed in solitary confinement in Virginia prisons stay there for 2.7 years. We don’t really know, however, how many people are being placed in solitary confinement or why because its use is entirely unregulated. We also don’t know how many within that population are mentally ill or members of other vulnerable groups. To fix the system, we need more information about current practices so that we can craft real solutions. House Bill 1642 will require the Virginia Department of Corrections (VDOC) to collect this information and report it to the governor and legislature each year. Two-thirds of the Virginians we polled understand our current criminal justice system is not the right way to address mental health and drug addiction issues. To move beyond that, we need data, and these transparency bills are a modest first step to getting it at least with respect to one particularly harmful practice that exacerbates rather than alleviates the current problems associated with how we address mental health and addiction in the Commonwealth.

Regardless of what happens this session, reforms that will make Virginia a more just and fair place are gaining popularity. Last November, Chesterfield County elected a candidate who ran on a platform promoting transparency, treatment and rehabilitation over the failed “tough-on-crime” tactics of years gone by. It is clear from this that voters are ready for change. In 2019, every member of the General Assembly and all 120 county Commonwealth’s attorneys will be up for election. It is time for policies that eliminate racial disparities, take care of our mentally ill, and promote justice based on the facts of the case - not the size of your wallet or the color of your skin.

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