Virginia Lawmakers Fail to Reach Agreement on Mandatory Minimums

State legislators across the country are looking at prison reform initiatives to address mass incarceration and understaffed prisons. Many have or are considering bills that would reduce or eliminate mandatory minimums. Virginia lawmakers hoped to follow the trend, but they couldn’t find common ground. The bill died before it reached General Assembly.

Mass Incarceration Rooted in Mandatory Minimums

The United States has a global reputation for having the largest incarceration rate among first-world nations. Mass incarceration is a well-known problem, and lawmakers finally appear committed to addressing the systemic problems that keep millions behind bars.

During the era of “tough on crime” policies, mandatory minimums arose that jailed nonviolent drug offenders for decades. Now, addressing problems with mandatory minimums seems to be a priority on both sides of the aisle. Even the First Step Act, championed by former President Donald Trump, looks to reduce mandatory minimums for certain convictions.

In Oregon, lawmakers looked to shrink the system with House Bill 2020. Broad in scope, one of the key factors in the bill was limiting crimes that require jail time and reducing mandatory minimums. Like other states, Oregon placed at least some blame for mass incarceration at the feet of mandatory minimums.

While individual states lead the charge in justice reform, several members of Congress want to address mandatory minimums at the federal level. U.S. Representative Maxine Waters (D-CA) introduced HR 7194 in June 2020. The bill is known as the Mandatory Minimums Bill of 2020, and it looks to return discretion to judges.

Mandatory minimums often make judges impose sentences that they do not agree with.

Repeat drug offenders may not deserve the sentences they receive. This is because individuals with multiple drug convictions can end up serving decades, or even life, in prison for nonviolent crimes due to mandatory minimums.

The War on Drugs created a false perception that drug offenders are inherently violent. The reality, though, is that a significant number of people behind bars are not violent. They struggle with addiction, but many addicts never hurt others. Most Democrats support the push to overturn mandatory minimums, especially with respect to nonviolent crimes. Unfortunately, Rep. Waters’ bill remains in committee, and aspects of the First Step Act still haven’t taken full effect.

Virginia lawmakers, like those in other states, showed that they were tired of waiting for federal reform. With bipartisan support, many were hopeful that the state would soon eliminate mandatory minimums altogether. Before the bill could move to the governor’s desk, though, it had to move from committee to the General Assembly. And that’s where things broke down. Like so many legislative efforts around justice reform, lawmakers could not reach an agreement about key features in the bill.

Virginia Passed a Slew of Criminal Justice Reform Bills

Experts describe the most recent General Assembly in Virginia as one of the busiest for criminal justice reform in years. Lawmakers voted to eliminate the death penalty and legalize marijuana. They amended regulations around bail and parole. But one bill never made it to the floor for a full vote. The bill would have gotten rid of mandatory minimums across the board. A committee comprised of members from both chambers was unable to agree on the parameters of the bill.

“It would have been the signature achievement of the session,” laments Virginia Senator Joseph Morrissey. “Everybody’s talking about the marijuana bill, but that pales in comparison to the mandatory minimum bill.” And he’s right. Misdemeanor possession of marijuana carries just a small fine. Some crimes, though, still require judges to impose lengthy sentences. The Code of Virginia defines mandatory minimums that include imprisonment for everything from driving while intoxicated to violent crimes like rape and murder.

Some felonies still reflect the “three strikes” rule in Virginia. Notably, someone charged with possessing more than one ounce of marijuana faces a Class 5 felony. This carries a mandatory minimum of one year in prison. On the third conviction of possession, current Virginia law requires a minimum sentence of life in prison. This essentially means that someone serving life in Virginia prisons may be guilty of nothing more than the habitual use of marijuana, something that will not even be a crime in the state by 2024.

While few lawmakers challenge mandatory minimums for violent crimes, most oppose hefty punishments for repeated nonviolent offenses. This may be where the mandatory minimums bill ultimately broke down.

Virginia legislators agree that mandatory minimums are a problem, but the broad elimination of all mandatory sentences was too much for some.

State Senator John Edwards pushed to eradicate all mandatory minimums other than a life term for killing a police officer. Under this version of the bill, thousands of prisoners currently serving time could have gotten new sentences. The House version, though, only sought to eliminate mandatory minimums for a handful of convictions, such as drug offenses and multiple nonviolent offenses. Though Delegate Mike Mullin supported the Senate’s version, he indicated that other members of the House would not approve the broader approach to mandatory minimums reform.

The bills passed in their respective chambers, but a committee could not agree on a common version before the General Assembly adjourned. Most Democrats approved both versions, but few Republicans joined them in voting to approve the bills. With little bipartisan support, a compromise was all but impossible.

For both sides, the scope of the bill was a problem. One group of lawmakers wanted to pass legislation that addressed all mandatory minimums in one stroke. Another pushed to address nonviolent crimes and table mandatory minimums connected to more serious crimes until a later date.

Ultimately, it was infighting among Democrats that killed the bill. Del. Mullin rejected a late proposal from the Senate, saying that the proposal didn’t have support from all Democrats. “There was a fundamental disagreement between the two bodies,” he explained. “Even with the final deal that the Senate offered, we were at least 18 votes down in the House.”

According to some senators, Del. Mullin stood in the way of compromise.

“The reason we didn’t get that done lies squarely at the feet of Mike Mullin,” Senator Morrissey argues. “I hold him 100% responsible.” He also implied that Del. Mullin approaches legislation as a prosecutor, not a delegate. The tension among Virginia Democrats isn’t new, but it appears to be coming to a head. Sen. Morrissey spoke for the Senate when he said that many in the chamber were tired of Del. Mullin standing in the way of reform efforts.

The inability to reach agreement leaves thousands behind bars for years and many judges frustrated. One issue they point to is the tendency for prosecutors to stack charges. The goal is to get suspects to plead guilty to lesser charges rather than risk a trial. If they go to trial and a jury finds them guilty, each charge carries its own mandatory minimum. Since judges cannot suspend mandatory minimums or assign some sentences to run concurrently, some prisoners end up facing multiple mandatory-minimum sentences of one to five years. If the jury finds them guilty on four separate charges, they could end up in prison for as much as 20 years.

“I can’t tell you the number of times I’ve heard judges say, ‘I don’t want to do this, but I have to,’” says Sen. Morrissey. “’I have to give you a mandatory minimum of five years on each of these four counts.’” Sen. Morrissey was one of those arguing in favor of addressing mandatory minimums across the board. Hi Republican counterparts opposed that method early on, suggesting that reform should be more deliberate. They wanted to take a look at mandatory minimums for individual crimes and classifications.

People of Virginia Ultimately Lose in the Mandatory Minimums Fight

The frustration and concerns expressed by Virginia lawmakers are understandable. But their inability to find common ground ultimately hurts their constituents. Prosecutors and police officers will continue to wield their power. They use mandatory minimums to put pressure on ordinary people.

And it’s those ordinary people who hurt the most. Defendants who may have pleaded guilty to a DUI before mandatory minimums are now choosing to fight the charges in court. Why? Virginia requires all DUI convictions to carry at least a brief stay behind bars. This can impact employment and force people to take a significant hit to their income. Like many laws targeted by reform bills this year, mandatory minimums laws disproportionately penalize poor people.

One small glimmer of hope in the fight is that lawmakers on both sides of the aisle seem ready to address mandatory minimums. They disagree on how to approach the issue, but there’s good reason to expect new proposals in the next session. Virginians can keep pressure on legislators to reach an agreement on mandatory minimums reform. They can also put support behind national efforts like Rep. Waters’ bill. With the current wave of justice reform sweeping the nation, eliminating mandatory minimums may still be in the cards.