Crime Commission Recommends Ending Mandatory Minimum Sentencing in Virginia

By Brandon Carwile
January 5, 2021

By a 9-2 vote, the group recommended eliminating mandatory sentencing. Now goes to the full General Assembly.

RICHMOND-Sometimes the punishment doesn’t fit the crime. Instead, in Virginia, some sentences are automatic. Judges can increase them if necessary, but they can’t be reduced. The Virginia Crime Commission believes this practice needs to end. By a 9-2 vote, the commission recommended eliminating most mandatory minimum sentences during their Jan. 5 meeting. 

Now this is just a recommendation. The General Assembly will take the recommendation and decide what, if anything, to do with it. Also, the recommendation doesn’t cover any Class 1 felonies. Those would still require mandatory sentences under the commission’s recommendation. A Class 1 felony refers to capital crimes like premeditated murder, murding a witness to a crime or kidnapping. It also refers to some major drug crimes. The commission also agreed that any crimes currently requiring a mandatory life sentence should keep that designation.  

RELATED: Does Virginia Need Mandatory Minimums?

Statistics Work Against Mandatory Minimum

The Crime Commission’s staff attorney, DeVon Simmons, kicked off Tuesday’s presentation with a review of findings in relation to mandatory minimums. Just to clarify, mandatory minimum sentences currently cover everything from traffic violations to violent felonies. A sentencing timeframe ranges from two days to life in prison.

In Virginia, 224 district offenses in 34 state code sections require a mandatory minimum sentence. Out of those, 162 apply to felonies while 62 fall under misdemeanor offenses. According to Simmons, one study found that mandatory minimums lack efficacy in their implementation.  

After analyzing state responsible inmates as of June 30, 2019, the Virginia Department of Corrections found that black inmates, on average, have more mandatory minimum sentences than white inmates. Also, male inmates have more mandatory sentences than females. And finally, in many cases, mandatory minimum sentences are not implemented consistently. 

There is plenty of literature that has focused on the deterrence of mandatory minimum sentences, however, research on the effectiveness has been inconclusive, according to Simmons. 

The Case of Michael Mosher

Tinsae Gabriel, Deputy Director of Policy at the FAMM Foundation, used the case of Michael Mosher during the public hearing portion on Tuesday as an attempt to influence Virginia lawmakers to revoke mandatory minimums. 

“All credible evidence shows they do not stop crime or deter crime,” said Gabriel. “Mandatory minimums strip judges of the ability to take into consideration all relevant facts of a case.”

Mosher was a soldier and a first responder who dealt with 9/11 and Hurricane Katrina. According to Gabriel, Mosher suffered from severe post-traumatic stress disorder as a result of the events. He also suffered from drug addiction, which was a motivating factor in an instance where Mosher robbed a convenience store with an unloaded airsoft BB gun. Mosher is currently serving 10 years in prison, six of which are mandatory.

Gabriel stated that Mosher is on the road to recovery. He completed his re-entry program, while suffering from multiple health conditions. According to Gabriel, Mosher has one functioning lung and a paralyzed diaphragm. 

“This hero is now vulnerable to death by COVID in prison and could be home and safe if not for Virginia’s mandatory sentences.”

The Chief Public Defender for Fairfax County, Andy Elders, agreed that its time to  abolish mandatory minimum sentences. 

Elders believes the threat of mandatory minimums “distorts” the legal process. According to Elders, in 2019, just over 1% of criminal convictions came from jury trials. This occurred because mandatory minimums are used as a threat to reach a plea agreement. 

“(Mandatory minimums) are diminishing our criminal justice system and undermining its legitimacy,” he stated. 

RELATED: Virginia House Kills Qualified Immunity Bill

The Discussion

The decision to eliminate mandatory minimums isn’t an easy one, as the Crime Commission acknowledged. But members like Del. Scott Surovell argued the change was necessary. Surovell, who works as a lawyer in Fairfax County, said the mandatory rule causes problems. 

“The behavior that I see in court every day that really troubles me significantly, is prosecutors using mandatory minimums to extort non-mandatory minimum convictions,” Surovell said. 

He added that lawyers have leverage to drive up legal fees, which defendants can avoid if they accept a minimum sentence. That gives people another reason to accept what might be a bad deal from the prosecution. 

For Senator John Edwards,  mandatory minimums need to go due to their tendency to evoke racial disparities and lack of individualized sentencing. Edwards made the motion to get rid of mandatory minimums, a decision immediately seconded by Delegate Mike Mullin. He said it was time to make a decision. 

“We either do it, or we don’t do it,” said Edwards.

However, not everyone was on board with the decision. Delegate Les Adams and Norfolk Police Chief Larry Boone were the two who voted against Edward’s motion. 

Adams argued there wasn’t conclusive evidence that mandatory sentences were a problem. He also expressed doubt in the bill generating enough support to pass the Virginia House and Senate. 

The recommendation now goes to the full General Assembly for a decision. The House and Senate open this month’s session Jan. 13.

Brandon Carwile is a freelance reporter for Dogwood. You can reach him at [email protected].

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