Jess Foster: My Personal List of Criminal Justice Reform Priorities for the 2020 Virginia General Assembly

By Jessica Foster, Esq.

While I am disappointed that, after running for the House of Delegates this past election, I will not be able to physically be in Richmond to stand up for the folks of my district, I am committed to participating in this historic session in any way that I can. And that means by lending my experience as a defense attorney to the criminal justice reform movement. 

I am so excited about our Democratic majority and what it truly means for the people I represent on a daily basis. This session should be a game changer, and I hope our electeds will take their newfound Democratic majority as a mandate to accomplish real, tangible change. In my view, go big or go home. The General Assembly has a guaranteed two years to transform the lives of Virginians and they should not squander the opportunity by worrying about “overreaching.” The other side has never hesitated to use its power to the max.

With that, here is my personal list of criminal justice priorities that I have built throughout this last year as I prepared for the 2020 session: 

1. Raise the age at which we can try kids as adults from 14 to 16. The Department of Juvenile Justice supports this. So does science.
2. Repeal the Grand Larceny statute. No theft, without aggravating factors should be a felony. No theft, based on value alone, should be a felony. Burglaries, robberies, larcenies from a person, larcenies of vehicles, are all still felonies. Make the theft of a companion animal a felony but plain Jane larcenies should be misdemeanors. 
3. Legalize marijuana. It’s a big lift, but that’s what Dems are there for. Why wait? Legalization would take effect July 1, 2021 to give the GA the time to figure out how to manage the regulation and the new stream of income. Between now and then – decriminalize the possession so that it’s a civil infraction that comes with a small fine.
4. Give juveniles an insanity defense. Currently juveniles suffering from mental illness at the time they commit a crime have no recourse except for prosecutorial discretion. 
5. Sexting reform. 1. Define sexting. 2. Make it a misdemeanor 3. Require diversion before prosecution of a first offense. We should not be prosecuting children with code sections meant to protect them from predators. Remember the case in Manassas when a prosecutor tried to inject a kid with Viagra to obtain evidence in a juvenile sexting case? That’s a crazy example of what happens when we criminalize youthful misconduct. 
6. Make prosecutors show their hand. Currently, a defendant charged with a low-level crime in Virginia is entitled to know exactly nothing about the case that is brought against him/her except for statements made to the police and his/her criminal history. That’s all folks. So no police report, no witness list, no witness statements. That’s unacceptable. 
7. Make prosecutors hand over evidence that supports innocence. We need to codify Brady v. Maryland – a Supreme Court case that requires prosecutors to hand over exculpatory evidence. Currently, the consequences for failing to disclose or actively burying exculpatory evidence are not uniform. 
8. Formally repeal driver’s license suspensions for failing to pay fines and costs. This was addressed last session, ultimately failed but then was added in as a line item in the budget. A person cannot pay fines and costs if he/she cannot drive to get to work to earn the money to pay the fines/costs. It’s not like we have a functional public transit system.
9. Repeal unconstitutional interdiction laws that criminalize drunkenness without due process. 
10. Allow judges to give people second chances on misdemeanors by giving judges the discretion to withhold a guilty finding on any misdemeanor charge. 
11. Automatically expunge acquittals and nolle prosequis and create and expungement process for misdemeanor convictions after a period of time. 
12. Increase the pay for private attorneys who volunteer to represent the indigent. They are currently paid $120 for a misdemeanor charge. 

There’s much more where that came from but this is a good start for the 2020 session.  Justice Forward Virginia has a good list too. I’ve passed this info along to some legislators already in hopes they will incorporate my ideas into the bills they’ve been working on. If you support my list of priorities, I encourage you to copy this list and send to your own legislator. They need to hear from their constituents!