The 2017 election–including re-electing the first Democratic Attorney General Virginia has had in twenty years–seems to have heralded the beginning of a wave of criminal justice reform in Virginia. Around the state, reform-minded candidates are running for Commonwealth’s Attorney. Voters and activists are pushing for felon voting rights restoration, treatment instead of prison for those with mental illness, community policing, more awareness of the role of implicit bias, and for an end to mass incarceration. We are looking for ways to be smart on crime, not tough on crime–to use our scarce resources to address violent crimes and not incarcerate people for their poverty, their youth, or their illnesses.
And we’re already starting to see some successes. We increased the felony larceny threshold last year for the first time since 1980. We ended the cruel practice of suspending drivers’ licenses for unpaid fines. Diversion programs such as drug courts, mental health dockets and Veterans’ dockets are being created around the state. A model School Resource Officer memorandum of understanding has been developed to help address the school-to-prison pipeline.
And now, the 4th Circuit has ruled against another one of Virginia’s cruel laws–one that makes it a criminal offense for those whom the Commonwealth has legally labelled “habitual drunkards” to possess, consume, or purchase alcohol. The Legal Aid Justice Center helped to bring the case of Manning v. Caldwell on behalf of several homeless individuals who suffer from alcoholism, and who have been repeatedly criminally prosecuted under this law, some as many as 25-30 times. For actions that are perfectly legal for any other adult.
The plaintiffs argued that the law is unconstitutional. First, it violates the Eighth Amendment’s Cruel and Unusual Punishment Clause by criminalizing people for their illness–alcoholism. Second, it violates the Fourteenth Amendment because the classification of “habitual drunkard” is “unconstitutionally vague”–lack of standards or guidelines for what conduct qualifies means individuals cannot determine whether they are following the law or not.
Delegate Jennifer Carroll Foy (D-02), a former public defender in Arlington County, tried the last two General Assembly sessions to use legislative means to end this law, but it was twice left in committee. She told me that even with this court ruling, she will still put a bill in next session to remove the law from the code, and will seek ways to retroactively undo some of the damage done by this law, including making sure no one is currently incarcerated due to it, and expunging the records of those prosecuted under the unconstitutional law.
And just today, Attorney General Mark Herring announced that his office would not appeal the decision to the US Supreme Court, stating “The General Assembly should have taken this strange and regressive law off the books a long time ago, but now that the court has done it for us I don’t see any need for the Commonwealth to continue this fight. Virginia can find better ways to address alcohol use disorders.” This is not all that surprising given his progressive reform positions on other issues such as cash bail, marijuana decriminalization, and felon voting rights. But it’s a great reminder that elections matter. Electing a slew of Democrats to the General Assembly, and re-electing a Democratic Attorney General allows Virginia to rid herself of outdated, cruel laws, and to figure out ways to adopt smart criminal justice reform. (Just a few more seats, and we can fix the Courts of Justice Committees in the House and Senate, and really start making some changes!)