New criminal procedure laws take effect July 1

by C.H. ‘CHUCK’ SLEMP III • Wise County/Norton Commonwealth Attorney

New laws passed by the Virginia General Assembly earlier this year will take effect on July 1, 2020.
Numerous criminal justice reform measures are part of the new legal landscape in the Commonwealth. Reforms include gun control, decriminalization of marijuana, reinstating parole, new criminal justice procedures for law enforcement to follow, new crimes and repeal of certain other criminal regulations. Whether you support or oppose these changes, every citizen needs to be aware of how the law will change in Virginia on July 1.

My office has been monitoring these new regulations closely because they impact the work we do to maintain public safety in our community and ensure victims' rights. We are providing updates to law enforcement in the next several weeks. The changes are too numerous to provide in a short list for citizens. Thus, over the next several editions of the Coalfield Progress, I will be sharing a five-part series of articles informing readers about the reforms to Virginia's criminal justice system.

This is the first of the five installments.

• New discovery rules: “Discovery” is the process that both sides in a case learn about the evidence. At the Commonwealth's Attorney's Office in Wise County, we have an “open file discovery” system.Thus, defense attorneys already learn almost everything about the prosecution's case before we go to trial. Not every prosecutor in Virginia is as generous, however. The new rules will require prosecutors to provide defense attorneys with copies of police reports, witness statements, and witness lists in felony cases in Circuit Court. Defense attorneys now must also provide prosecutors with a list of defense witnesses.

• Jury selection: Before a jury trial, attorneys ask prospective jurors questions to ensure that they are qualified and can be fair to both sides. This process is called “voir dire.” On July 1, attorneys for either side may inform jurors about the potential punishment range to ascertain whether the juror can sit impartially in the sentencing phase of the case. Until now, jurors were not allowed to know about potential punishments before the case began.

• Juveniles tried as adults: If a juvenile is tried as an adult and convicted of a felony (a process that does not frequently happen), courts do not have to impose mandatory minimum punishments and may suspend any portion of a sentence that a judge deems acceptable. Also, the new law in Virginia increases from 14 years of age to 16 years of age as the minimum age at which a juvenile may be tried as an adult in Circuit Court for murder or other violent crimes.

• Sentence reduction for “cooperation:” The Code will now allow a convicted person's sentence to be reduced by a court if the court determines that the person provided “substantial assistance” to the Commonwealth in furtherance of the investigation or prosecution of another person for certain offenses.

• Writ of actual innocence: Anyone who is convicted for a felony may now petition for a “writ of actual innocence” based on biological or nonbiological evidence regardless of the type of plea he entered at trial.

• Immigration status: Law enforcement in Virginia may not inquire about a defendant's citizenship when they are taken into custody at a jail for a misdemeanor or traffic offense.

• Presumption against bail: In certain cases, a defendant is presumed to be a risk to the community because of the nature of the crime they are charged with (murder, for example). In those cases, they may petition the court to be admitted to bail while awaiting a hearing on their case. Under current law, that individual may not be released on bond without notice being provided to the Commonwealth's Attorney. This allows our office to give victims an opportunity to be heard. On July 1, however, a magistrate or judicial officer can set bond and admit that person to bail without notifying the Commonwealth's Attorney or victim.

• Parole: Virginia abolished parole in 1995. On July 1, however, parole is making a comeback. The reality of the parole system is that the amount of time a criminal spends in prison is not determined by the citizen-jurors or judges that heard the evidence. Instead, that time is determined by a group of appointed bureaucrats who were empowered to cut a sentence. Those who were convicted of crimes from 1995 to 2000 will now be eligible for parole. Juveniles who were tried as adults for felony offenses are also now eligible for parole after they have served 20 years in prison, even if they committed murder.

• Police interviews and interrogations: Starting on July 1, under Virginia Code Section 19.2-390.04, police must make audiovisual recordings of the entirety of any “custodial interrogation” conducted while that person is in “a place of detention.” If the police fail to do so, the defendant's statements are still admissible in court. However, the court or jury may consider such failure in determining the weight given to such evidence. In light of this policy change, I have recommended to our local police departments that they record any and all interactions with witnesses whenever possible. Additionally, prior to any custodial interrogation of a child who has been arrested by law enforcement for a criminal violation, the child's parent, guardian or legal custodian should be notified unless various exceptions apply.

• Unrestorably incompetent defendants: If a defendant is deemed to be “unrestorably incompetent” to stand trial because of “an ongoing and irreversible medical condition” and prior medical or educational records are available to support that diagnosis, the new law allows a court to reach a dismissal (i.e., dismiss the charges) without having to undergo restorative treatment.

• Deferral and dismissal for persons with intellectual disability or autism: Under the new 19.2-303.6, a court may defer a finding of guilt and dismiss a criminal case if the defendant has been diagnosed with autism or an intellectual disability and the court finds by clear and convincing evidence that that the criminal conduct was caused by or had a direct and substantial relationship to the person's disorder or disability. This new statute applies to almost all criminal cases (except for violent crimes).

These are just a few of the many changes to the criminal law taking effect on July 1 in Virginia. Keep reading the Coalfield Progress for more legal updates to Virginia law.