Mandatory Sentencing Survives, as Virginia Committee Strikes Changes

People living with HIV can be prosecuted in Virginia

By Brian Carlton

September 23, 2020

RICHMOND-If you assault a police officer, it’s automatically a felony charge and a mandatory six month jail sentence in Virginia. That remains the case, as an attempt to alter the law failed Tuesday in the Virginia House. 

For people who want the law altered, a big issue is how it affects children. Julie McConnell, Director of the Children’s Defense Clinic, testified Tuesday before the House Courts of Justice Committee, detailing what some of her clients went through. For example, a 15-year-old Virginia boy opened the door to his own home with a key when an officer stopped him. The officer asked for his name, address and birthday.

“He didn’t want to give his birthday,” McConnell said. “[The boy] gave his name and address and they started to arrest him. He pulled away from the handcuffs and they charged him with felony assault of a police officer.” 

In another incident, McConnell told of a 12-year-old girl whose family called 911 while she was having a mental health crisis. 

“The response from police was to put her in handcuffs, [holding] her hands tightly behind her arms so much so she struggled to have her arms released,” McConnell testified. “In the process, she was charged with two felony counts of felony assault on a police officer.”  

The argument by Virginia Sen. Scott Surovell and others who supported his bill, SB5032, was that the current law goes too far. 

“We’re making a felony where there isn’t one in many of these cases,” McConnell told the House committee. “No one is saying it’s all right to assault officers but there are other ways to charge these offenses.” 

What Does The Bill Say? 

Controversy surrounded this bill since it passed the Senate in August. It even trended on social media. Multiple media outlets claimed it reduced all assaults on an officer from a felony to a misdemeanor. That’s not entirely correct. The current law says when an officer suffers broken bones or a concussion, any type of serious injury from an attack, that’s a felony. Anyone convicted of that crime receives up to 30 years in jail. This bill wouldn’t have changed any of that. 

Instead, in any case where the person is mentally ill or developmentally changed, a jury or judge could make the charge a misdemeanor. The same goes for a situation where the officer didn’t get injured. Those are the only two situations where the felony could become a misdemeanor charge.

That last part drew concern from law enforcement organizations in Virginia. Testifying on Tuesday, Virginia State Police Association Executive Director Wayne Huggins pointed out that a lack of an injury doesn’t mean there wasn’t a fight. 

“The fact there is no bodily injury does not mean an assault was not attempted,” Huggins said. “Say someone throws a punch at us or swings an object and we’re able to block it, that person in my opinion should be as culpable as someone who makes contact with a punch.” 

Virginia Sheriffs Association Executive Director John Jones echoed those comments. Jones also questioned eliminating the six-month minimum sentence. 

“We think that it sends the wrong message to our law enforcement at this time,” Jones said. “I’ve been getting a lot of calls from deputy sheriffs. They view it as diminished support for law enforcement.” 

Bill’s Supporters Call For Change

Surovell and his supporters argued the current structure needs change. They pointed to children facing charges, as well as mentally ill residents. Shannon Taylor, the Commonwealth’s Attorney for Henrico County, also pointed out the majority of these cases end up being reduced anyway, due to the lack of severity. From 2017 to April of this year, Henrico County reported 177 felony assaults. Out of those, officials reduced 164 to misdemeanors. State numbers tell a similar story. The Virginia State Police 2019 Annual Crime Report shows 1,939 assaults on law enforcement last year. Out of those, 70% resulted in no injury and 25% resulted in minor injuries. 

So what’s the difference, Surovell and his supporters asked, between commonwealth attorneys reducing the charge and doing it at the state level?

Another proposed change in the bill would have required another police officer to investigate and for the local commonwealth’s attorney to sign off before felony charges could be brought. 

“Right now, this is the only crime on the books where the same person is the victim, the lead investigator, the lead witness and the charging police officer,” Surovell said. “It’s because of this conflict of interest you see this charge overused and, in my perspective, often abused.” 

A Question of Details

Still, members of the House committee couldn’t get past a couple points. Del. Ronnie Campbell said he thought it was bad for law enforcement, concerned about the “no injury” clause. 

“I’m concerned this bill will declare open season on police officers,” Campbell said. “It troubles me that a police officer with good defensive tactics can have someone jump on him and attack and [not get] a felony.” 

Other delegates argued the bill was too broad, which is a claim we’ve heard multiple times during this special session. Del. Jeff Bourne, whose bill to eliminate qualified immunity died by the same argument in a Senate committee last week, made that statement Tuesday. 

“I have learned over the last several weeks that words, definitions [and] standards matter,” Bourne said. “A measure like this needs to be done right. We need to get it right. I heard a lot of times that we vote on bills, not ideas. I would like us to get to a place where we can vote on a great bill that eliminates the mandatory minimums.” 

To do that, Bourne proposed Surovell’s bill be “passed by indefinitely.” That means it would sit in committee for the rest of this session. A letter then goes to the crime commission, asking them to study the issue so a new proposal could be discussed in 2021. Committee members agreed, scrapping SB5032 by a 18-1 vote.

Brian Carlton can be reached at [email protected] or on Twitter at @BrianCarltonVA

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