In this year’s gubernatorial debates, Confederate monuments came up time and time again. Such a singular focus seems strange, considering that all the candidates in this election have essentially the same position on that issue – leave the decision up to local residents. But because it is a culture war issue, it commands attention. One candidate likes the monuments. Another does not. That tells us which team they are on in the ongoing culture war.
Some people are passionate about Confederate monuments. I understand that. But what a shame that the topic has sucked up so much of the oxygen in the room, leaving little time for issues that much more directly impact the material well-being of Virginians on a daily basis. As a lawyer and a believer in the importance of freedom, choice, and of our constitutional and civil rights, I see criminal justice reform as one of the top priorities in the Commonwealth. However, the topic never came up in any of the debates. Have the monuments been pushed front and center to distract and divide us, to keep us from reaching a bipartisan consensus on urgently needed reforms in other areas?
Virginia’s criminal justice system is unfortunately not very just and has many policies that are a legacy of an explicitly racist past, when state government enforced massive resistance to public school integration and banned interracial marriage. Its burdens weigh especially heavily on lower income Virginians and people of color, but all of us pay dearly — both through a loss of skilled workers and economic dynamism, and direct support of the system and affected families with taxpayer money. Each of us must come to terms with our association with an unjust and devastating system that shames us on a national level.
Virginia’s criminal justice system fails most dramatically where success is most critical — for our children. In a tragedy often referred to as Virginia’s “School-to-prison pipeline,” Virginia refers students to law enforcement agencies at the highest rate in the nation — nearly triple the national average, disproportionately black and disabled children. About half of criminal complaints are for children aged 14 and under. Schools are not required to report the reasons for the referrals, but anecdotal evidence abounds, with charges of “disorderly conduct” for behavior such as kicking a trash can.
The Virginia Department of Corrections reports that we pay over $120,000 per year to keep a child in juvenile detention, even though we utilize large juvenile prisons with severely limited programs for rehabilitation and recidivism reduction. Rehabilitation and reintegration into society should be top priorities for juvenile facilities, because the human and financial cost of losing an entire lifetime to the criminal justice system is astronomical. But our failure in this area is staggering — 75 percent of youths leaving juvenile facilities are reconvicted within three years.
While housed in these facilities, located over 100 miles away from Hampton Roads and Northern Virginia — our highest committing communities — youths pay $5 to $10 per phone call and earn 35 to 50 cents an hour in their institutional work program. Meanwhile, their families are forced to pay child support to the state to support the cost of their commitment.
Community-based alternatives not only exist, but are used successfully in other states, where research has proven their effectiveness. Functional Family Therapy, a structured family‐based intervention that uses a multi‐step approach to enhance protective factors and reduce risk factors for the family; Aggression Replacement Training, which uses repetitive learning techniques to help offenders develop skills to control anger and use more appropriate behaviors; and Multi-Systemic Therapy, which improves families’ capacities to overcome the causes of delinquency by promoting parents’ ability to replace deviant peer relationships with pro‐social friendships; have each been shown to produce net benefits of tens of thousands of dollars per youth. We need to bring those proven programs here to Virginia. Where secure facilities are necessary, they should be small, regionally-based, and focused on growth and rehabilitation under an independent ombudsman’s oversight.
But reform needs to go well beyond our juvenile justice system. Too many Virginians are languishing in prison for victimless crimes like drug use, away from their families and away from any productive work. Virginia spends billions of dollars each year on a criminal justice system that arrests 40,000 Virginians for drug crimes every year, with marijuana arrests accounting for 60 percent of those and mere possession well over 80 percent. The direct cost to incarcerate one person is about $30,000 per year, not to mention the loss of their productivity to the economy and the loss of their tax dollars, the fracturing of their family, and all the negative economic consequences for their families and for their futures.
Drug arrests disproportionately affect African American communities, even though research indicates drug use is no more prevalent there, and contribute substantially to the gaps we see between those communities and others in terms of educational outcomes and economic performance.
The number of drug arrests in Virginia has skyrocketed over the last 10-15 years, almost doubling — even though rates of violent crime and property crime are dropping, and even though rates of drug arrests are also falling rapidly in other parts of the country. The Commonwealth has ordered a study into marijuana decriminalization, but do we really need a study? 29 states and the District of Columbia already have legalized marijuana. We know that it works.
When marijuana is legalized, opioid deaths plummet and tax revenues soar. Surveys show that more than 85 percent of Virginians support some form of legal marijuana, and over 60 percent support full legalization. But because we have no ballot referendums here in Virginia, we are still waiting for action from a governor who cares about what the people of Virginia want. We don’t need a study, we need to stop wasting taxpayer money incarcerating productive citizens, separating them from their families and subjecting them to abuse, and depriving them of their ability to obtain stable and high paying jobs in the future. We need to legalize marijuana now.
Although legalization requires cooperation of the legislature, the governor has the power to grant an absolute pardon to any Virginian who is in jail only for drug use, after completion of a treatment or anti-recidivism program (if deemed necessary), so they can return to their families, expunge their records, and get a good, stable job. And until marijuana is formally legalized, the governor can order law enforcement to give laws against drug use the lowest possible enforcement priority. That would allow us to dramatically cut the $3 Billion spent on the justice system each year and increase tax revenues while strengthening families and improving relationships between police and the communities they serve.
Numerous other abusive criminal justice practices in Virginia should also be curbed. For example, arrest quotas should be made explicitly illegal, so that police officer promotion or awards cannot be predicated on making a certain number of arrests. The abusive suspension of driver’s licenses for failure to pay trivial fines and for minor drug offenses should end, to help keep at-risk Virginians employed.
Civil asset forfeiture abuse, also known as “policing for profit,” is a common practice in Virginia whereby police can seize private property based merely on a suspicion that the property was related to criminal activity, without any criminal charge or conviction. Victims are forced to sue the police department to get their property back, a costly, time-consuming, and, for most victims, impractical process. A criminal charge should be required before property can be seized, proceeds should be sent to the general fund and not directly to the police, and property should be returned to the owner when a criminal conviction is not obtained.
In Virginia, judges with little knowledge of the lives of the accused set bail levels at their own discretion and without relying on statistical evidence. Experiments with bail reform in other states have shown equal or better results in defendants showing up for trial, with much lower costs to the accused – many fewer poor people forced to stay in jail, sometimes for a year or more, just because they can’t afford bail.
The felony larceny threshold should be increased from $200 (the lowest in the nation) to the national average of $1,000 or more. Studies show that low thresholds waste valuable resources without any benefit in crime reduction.
Parole for non-violent offenders encourages rehabilitation and good behavior and reduces recidivism, and should be reinstated in Virginia. Restoration of voting rights should be made automatic after all sentences and probation are served, as in almost all other states. Trial by ambush should be ended, by requiring prosecutors to turn over police reports and other evidence to the defense before a trial. And, Virginia should implement the recommendations of the 2015 Governor’s Commission on criminal justice reform for improving our prison system, which could save Virginia $500 Million each year while improving effectiveness.
All of these reforms are badly needed and would save the Commonwealth billions of dollars in direct and indirect costs while allowing law enforcement to focus on serious crimes. They would also rehabilitate our reputation and make our state fairer and more just for all its citizens. Shouldn’t the Governor make these reforms a priority? Only one candidate has made them a priority on the campaign trail — that’s me.
*Photos by Landon Shroder