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6 Ways To Improve The Criminal Justice System In 2021

At W&K, we always strive to be fashionable. To that end, we've just returned from the runways of NYC and you will soon be seeing us in court rocking the latest cutting edge of men's suits.

Other than inflatable pants, nothing is more fashionable right now than criminal justice reform. Effective July 1, 2020:

Possession of up to an ounce of that demonic weed is decriminalized. Well alright, alright, alright.

No more driver's license suspensions for unpaid court costs and fines. F the man!

Felony larceny threshold doubled from $500 to $1000. Take that Target!

For real, these are all common sense steps in the right direction. But now it’s time for legislators to swing for the fences in 2021. We have it on good authority that many members of the Virginia General Assembly are big fans of the W&K blog so we’re here to help them out. Here are 6 officially endorsed W&K changes to the law that can improve the criminal justice system in 2021.

1. Jury Sentencing Gets The Ax

We’ve written extensively on the absurdity of jury sentencing here and here. In Virginia, our system after a jury trial is to send 12 amateurs into a room without sentencing guidelines and have them blindly flail. It’s like handing a scalpel to a child and letting them waltz into the operating room. What could go wrong, amirite?

It's a deeply stupid system that produces insane results. The stats show that Virginia defendants who had a jury trial and lost were about 5 times more likely to receive a super harsh sentence. The very simple solution is to get rid of jury sentencing like almost every other state. We support the proposed new law by Senator Joe Morrissey that would eliminate jury sentencing unless the defendant requests it.

2. Allow More Options For Deferred Findings

This is another subject that we’ve written on extensively. The idea is to allow certain people (typically people with no criminal record) to avoid convictions by doing things like completing treatment, doing community service, and paying restitution. The problem is that those meddling Court of Appeals judges keep getting in the way by publishing opinions saying that deferred findings aren't a thing.

One proposed new law would give courts way more latitude to fashion deferred findings. W&K approves!

3. Get Rid Of Mandatory Minimums

Imagine if this is how we handled sentencing hearings: The judge was told nothing about the facts of the case. The judge was told nothing about the background or record of the defendant. Instead, the judge is only told what the defendant has been charged with and instructed to impose a specific sentence. Pretty asinine, right? The General Assembly needs to take the cuffs off our poor judges.

Mandatory minimum sentences have always been nothing more than a cheap political stunt, and a giant transfer of power from judges to prosecutors. There is not a shred of evidence to support that they're effective. It’s not rocket science folks. Let judges hear the facts of the case and the background of the defendant so that they can fashion an appropriate sentence. We fully endorse the bill sponsored by Senator John Edwards that would eliminate all mandatory minimum sentences.

4. Get Rid Of Direct Indictments

This is another topic we’ve discussed in a prior blog post. In Virginia, criminal defendants charged with felonies have a "right" to a preliminary hearings. Preliminary hearings are super important to the defense. In fact, they're usually the defense's only opportunity to hear testimony from the key witnesses prior to trial. But why is the word "right" inside those scary quotation marks? Because it's a pretty limp "right" that the prosecution can take away whenever they want through a process called direct indictment.

If the "right" to a preliminary hearing is going to be more than a wet noodle, the General Assembly needs to write a better law. We suggest something along the lines of "no person prosecuted on a felony shall be tried in circuit court without a preliminary hearing or the defendant's written waiver of a preliminary hearing." See, that wasn't so hard!

5. Eyewitness ID Reform

This issue is near and dear to my heart. My first jury trial was a mistaken identification case. I’ve personally handled multiple cases where we conclusively proved mistaken identification (including a murder case). All of the evidence shows that eyewitness misidentification is the leading cause of false convictions by far.

So you would think that Virginia would take identification issues seriously.

There is no law in Virginia governing how lineups are conducted. Instead, the best we have is an unenforceable model policy on lineups. It's kind of like if Virginia had a model policy but no actual law that houses shouldn't be insulated with asbestos.

Well we’re in luck because North Carolina has a lineup law that we can steal. G.S. 15A-284.5 mandates double blind administration, sequential lineups, and a host of other best practices of ID procedure. If the police blow off the requirements, there is the novel concept of consequences.

6. Allow People To Expunge Old Non-Violent Convictions

The current law in Virginia only allows expungement of criminal charges that have been dismissed or dropped. If you were convicted, you're out of luck no matter how old the charge.

Why not add a provision that allows for the expungement of non-violent charges after a certain period of time? Does the world need to know that a 30 year-old was arrested for being drunk in public when he was a teenager? A 2009 Justice Department study found that a past criminal conviction of any sort reduced the likelihood of a job offer by 50 percent. It doesn't make any sense to permanently block people from reaching their economic potential for youthful mistakes. Our suggestion is a law allowing for the expungement of non-violent misdemeanor convictions after 5 years of no new convictions and non-violent felony convictions after 10 years of no new convictions.

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