Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
Each year, NACDL affiliates, members of the State Criminal Justice Network (SCJN) and other advocates work diligently at the state level to bring about reform of key criminal justice issues. At the end of each year, NACDL’s goal is to highlight the various legislative victories in numerous jurisdictions. During the 2020 legislative session, NACDL tracked over 30 criminal justice issues ranging from asset forfeiture reform to surveillance reform. NACDL is pleased that many of the issues tracked around the country had successful outcomes.
Included in the victories adopted and reflected in this summary is the passage of “An Act Concerning Police Accountability” in Connecticut. Connecticut’s public defenders participated in the nationwide #BLMtoPublicDefenders march and supported most of the bill’s provisions. In addition to limiting qualified immunity, the bill also makes police disciplinary records subject to FOIA requests, allows cities and towns to create civilian review boards with subpoena power, creates a new independent Office of the Inspector General to conduct use of force investigations, bans chokeholds, and provides whistleblower protections to those who report excessive use of force, among other provisions.
The Georgia Association of Criminal Defense Lawyers (GACDL) saw the unanimous passage of HB 984, a fairness in sentencing bill that GACDL drafted and proposed. HB 984 clarifies sentence commencement subsequent to appeal, ensures people receive credit for time served ahead of each criminal conviction, and serves as a response to Gray v. State by allowing judges sufficient time to consider and rule on sentencing modification requests. HB 984 takes effect on Jan. 1, 2021. In addition, GACDL was a key partner with the Georgia Justice Project and the Southern Center for Human Rights, drafting the language and shepherding the passage of SB 288, a record restriction bill that expands restriction to include certain misdemeanor convictions as well as pardons. SB 288 brings Georgia more in line with the national movement to increase opportunities for record restriction and, thereby, reduce barriers to employment, housing, and other necessities often foreclosed by criminal history information, no matter how minimal or stale that information might be. SB 288 takes effect on Jan. 1, 2021.
GACDL’s legislative team also played a role in the passage of:
- SB 435: The Debbie Vance Act to allow for vacatur of convictions resulting from a person’s victimization in human trafficking (effective July 1, 2020)
- HB 799: Allows limited driving permit for DUI-drugs
- HB 993: Dissolves the Child Abuse Registry (effective July 1, 2020)
California’s AB 3070, drafted and championed by the California Attorneys for Criminal Justice (CACJ) and the UC Berkeley Law Death Penalty Clinic, passed and was signed into law. The new law aims to counter discrimination in the jury selection process by prohibiting the removal of jurors based on their race, gender, ethnicity, sexual orientation, national origin, or religious affiliation. The law, in addition to a new Jury Selection Work Group out of the Supreme Court of California, is part of a statewide, multibranch reassessment of jury selection practices related to jury instructions, jury pools, and the influence of unconscious bias.
In March 2020, the Council for Court Excellence (CCE), along with the George Washington University Law School’s Prisoner & Re-entry Clinic, the Public Defender Service for the District of Columbia, and Covington & Burling LLP, successfully presented a proposal to the D.C. Council, which adopted good time and compassionate release provisions in the District’s second COVID-19 emergency response bill. The mayor signed the emergency legislation on April 10, 2020, temporarily expanding the pool of people convicted under local D.C. law but serving time in the federal Bureau of Prisons who are now eligible to apply for early release. Language to make these provisions permanent is included in B23-0127, currently under consideration.
Though not a legislative victory, after several delays, changes to Virginia’s current discovery rules took effect July 1, 2020. As readers may recall, in September 2018, the Supreme Court of Virginia issued amended criminal discovery rules, with a delayed implementation date of July 1, 2019, marking the first such overhaul in decades. Specifically, the Court amended Rules 3A:11 (Discovery and Inspection) and 3A:12 (Subpoena) of the Rules of the Supreme Court of Virginia. The amended rules provide far greater pretrial disclosure by prosecutors, including the inspection and review of police reports and statements of co-defendants and alleged co-conspirators that are sought to be introduced at trial. The amended rules also create mutual obligations on the defense and prosecution relating to the exchange of witness lists and expert witness information. For more information on discovery reform in Virginia, listen to episode 59 of The Criminal Docket podcast.
In addition to the progressive reforms addressed in this summary, state affiliates were successful in pushing back against regressive criminal justice legislation. For example, California’s AB 2261, a bill that would have allowed state and local agencies to identify, locate, and track people using facial recognition systems that have been proven to be inaccurate and biased, was successfully defeated by a diverse coalition of over 55 state and national organizations.
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The bills highlighted in this summary reflect final actions taken by November 15, 2020. Visit www.nacdl.org for updates on legislation.
LD 1983 clarifies that records of property forfeited to law enforcement must be maintained by those agencies, and that such records are open to inspection by anyone. However, it also eliminates the current law that requires the Department of Public Safety to maintain a centralized record of property seized.
HB 1522 requires that any action for the forfeiture of property used in connection with the commission of a crime be stayed until the person whose property is the subject has been found guilty of the crime, regardless of whether that individual has been sentenced. However, the bill provides that property may be forfeited without a finding of guilt if (1) the forfeiture is ordered by the court pursuant to a plea agreement or (2) the owner has not submitted a written demand for the return of the property within 21 days from the date the stay terminates.
HB 4717 provides for a report to the state auditor from law enforcement agencies, excluding prosecuting attorneys. It also requires the state auditor to conduct an audit when seizure of assets or expenditure of funds from seized assets exceeds a designated amount.
Bail and Pretrial Reform
HB 206 creates a presumption of release for individuals arrested for certain criminal offenses while awaiting trial and provides that a person eligible for pretrial release must be released under the least restrictive reasonably available conditions to ensure the appearance of the accused and public safety. However, the bill does create a presumption of pretrial detention for certain criminal offenses.
HB 1462 eliminates the provision prohibiting a judicial officer who is a magistrate, clerk, or deputy clerk of a district or circuit court from admitting to bail, that is not set by a judge, any person who is charged with an offense giving rise to a rebuttable presumption against bail without the concurrence of an attorney for the Commonwealth. It also eliminates the requirement that notice be provided to the attorney for the Commonwealth before such judicial officer may set or admit a person to bail.
HB 2231 modifies Washington’s felony bail jumping statute to provide judges, rather than prosecutors, with the power to determine how much additional prison time a person should receive after missing a court hearing. The bill also creates the lesser included offense of Failure to Appear or Surrender, which is a gross misdemeanor if the person was held for a felony and is a misdemeanor if the person was held for a gross misdemeanor or a misdemeanor.
HB 2419 authorizes the release of a person charged with a misdemeanor when first appearing before a judicial officer, establishes conditions under which an arrested person is entitled to the least restrictive bail conditions to assure appearance and safety in the community, and establishes that in all misdemeanor cases, cash bail cannot exceed the maximum fine for the offense. The bill also requires review of bail of an incarcerated person unable to meet the requirements of a secured bond.
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Search, Seizure & Criminal Litigation (2018)
Many people think the Fourth Amendment is dead. One thing is for sure, it’s certainly not your parents’ Fourth Amendment anymore.
Racial Profiling & the 4th Amendment (2017) – Featuring Juval O. Scott - Video DVD
Many people think the Fourth Amendment is dead. One thing is for sure, it’s certainly not your parents’ Fourth Amendment anymore.
Suppress It! Litigating 4th Amendment Rights (2016)
Many people think the Fourth Amendment is dead. One thing is for sure, it’s certainly not your parents’ Fourth Amendment anymore.
Pattern Cross-Examination of Expert Witnesses: A Trial Strategy & Resource Guide
In a criminal trial, cross-examination of the prosecution’s forensic expert may make the difference between victory or defeat.
2020 Sample Motions Collection Update - CD-ROM
NACDL’s 2020 Sample Motions Collection is the follow-up to our wildly popular 2019 Sample Motions Collection and contains the newest and most recent additions to our ever-expanding Sample Motions library.
State v. Stone - A Case Study on Child Sexual Molestation & Sexual Battery (2020)
The criminal defense attorney tasked with defending such a case has to be prepared to not only show reasonable doubt, but to answer this question: If it did not happen, how is it that the child believes it did happen?
POZNER ON CROSS: Advanced Cross of Experts & Officers in DUI Cases
It’s not your strong opening argument. It’s not how many of your impassioned objections the judge sustains. It’s not even how you tie your theory of the case together with a dazzling closing statement bow. What wins your trial is your cross.
SB 8 requires certain law enforcement agencies to use body-worn cameras while on duty and establishes policies and procedures governing their use. The bill further establishes disciplinary rules for officers who fail to operate body cameras in accordance with policies, intentionally manipulate a recording, or prematurely erase a recording. The bill establishes grounds for permanent revocation of certification after conviction or making certain pleas.
SB 8493 creates the New York state police body-worn cameras program, directs the Division of State Police to provide all state police officers with body-worn cameras, and prescribes situations when the camera must be turned on and recording. The bill has a delayed effective date of April 1, 2021.
S 124 provides that on Jan. 1, 2022, if a law enforcement agency authorizes its officers to use body cameras, the use of such cameras must be in compliance with a model policy adopted by the Vermont Criminal Justice Council.
HB 246 requires localities to adopt and establish a written policy for the operation of a body-worn camera system that follows best practices.
AB 2512 authorizes a defendant in a death penalty case to apply for an order directing that a hearing to determine intellectual disability be conducted as part of a habeas corpus petition.
SB 100 repeals the death penalty for offenses charged on or after July 1, 2020.
SB 270 provides that the compounding of drugs provided to the Department of Corrections for the purpose of carrying out an execution by lethal injection constitutes the practice of pharmacy and must be subject to the requirements of the Drug Control Act. It provides that only outsourcing facilities may compound such drugs and requires the Board of Pharmacy to report annually on the number of registered outsourcing facilities and on any disciplinary action imposed on such facilities.
Drug Law Reform — Good Samaritan Laws
SB 667 provides that no individual shall be subject to arrest or prosecution for the unlawful purchase, possession, or consumption of alcohol; possession of a controlled substance, marijuana, controlled paraphernalia, or intoxication in public if (1) such individual seeks or obtains emergency medical attention for himself or another individual experiencing overdose, or another individual seeks medical attention for such individual. The bill provides that, in order to receive protection from arrest or prosecution, the person must identify himself or herself to the responding law enforcement officer and remain at the scene of the overdose or at any location that the individual requiring medical attention has been transported. The bill provides that the protection from arrest or prosecution only applies if the evidence would have been obtained only as a result of an individual seeking or obtaining emergency medical attention.
Drug Law Reform — Drug Paraphernalia
HB 791 repeals the sunset on the authority of the commissioner of health to establish and operate local or regional comprehensive harm reduction programs that include the distribution of sterile hypodermic needles and syringes. The bill establishes that any person who possesses or distributes controlled paraphernalia on behalf of or for the benefit of a comprehensive harm reduction program, or a person who possesses controlled paraphernalia obtained from a comprehensive harm reduction program, is not committing a Class 1 misdemeanor.
HF 627 mandates development of a model policy that articulates best practices in eyewitness identification and promotes uniform practices statewide, to be adopted by chief and local law enforcement officers and agencies. The model policy must require that: a person administering a live or photographic lineup be unaware of the suspect’s identity or at least unable to see which member of the photographic lineup is being viewed by the eyewitness; the eyewitness is instructed that the perpetrator may or may not be in the lineup; nonsuspect fillers in the lineup be substantially similar to eyewitness’ description of the perpetrator; the eyewitness provide a statement immediately after making an identification that articulates the eyewitness’s level of confidence.
LB 881 allows expert testimony regarding eyewitness identification. Before the passage of LB 881, Nebraska was the only state in the United States that did not allow expert testimony on eyewitness identification.
H 319 expands the Idaho State Appellate Public Defender’s authority to represent indigent defendants in misdemeanor and juvenile appeals from the district court to the Idaho Court of Appeals and the Idaho Supreme Court.
S 1284 makes indigent defendants’ attorney work product, attorney-client privileged information, and information about an attorney’s fitness to represent indigent defendants exempt from disclosure under the Public Records Act.
SF 2182 creates a State public defender pilot project beginning July 1, 2020, and ending June 30, 2024, to implement innovative models of legal representation to assist families involved in the child welfare system.
SB 139 creates the Office of Indigent Defense Services, the Indigent Appellate Defense Division to serve rural counties, and the position of chief appellate officer. The bill allows the indigent defense services grant program to award grants for contracts to provide indigent defense services for appeals from juvenile court proceedings.
SB 175 creates the Office of Indigent Defense Services.
HB 366 establishes a public defender office for the cities of Manassas and Manassas Park and the county of Prince William.
HB 824 provides that in any case in which a defendant is charged with a felony or Class 1 misdemeanor and determined to be indigent, the defendant or the defendant’s attorney may move the court to designate another judge in the same circuit to hear an ex parte request for appointment of a qualified expert to assist in the defense. It provides that, after a hearing upon the motion, the court is required to authorize the defendant to obtain expert assistance upon a showing that the requested assistance would materially assist the defendant and that the denial would result in a fundamentally unfair trial.
SB 203 requires that a youth 17 years of age or under (previously 15 years of age or younger) consult with legal counsel prior to a custodial interrogation and before waiving his or her rights. The bill directs a court to consider any willful failure of a law enforcement officer to allow a youth to speak with counsel before a custodial interrogation in determining the credibility of that law enforcement officer.
SB 6533 establishes that whenever a child is subject to interrogation at a facility designated for the questioning of juveniles, the entire interrogation, including the giving of any required notice of rights and any waiver of rights, must be video recorded such that the individuals in the recording are identifiable and the speech is intelligible. The bill requires that a copy of the recording be subject to discovery.
HB 746 requires that prior to the custodial interrogation of a child who has been arrested, the child’s parent, guardian, or legal custodian be notified of the child’s arrest and have contact with the child in person, electronically, by telephone, or by video conference.
HB 1023 requires that the entirety of a custodial interrogation conducted at a place of detention be recorded. The bill provides that if it is not possible to make an audiovisual recording, an officer must make an audio recording.
HB 637 sets up a statewide system to track the use of and benefits provided to jailhouse informants and expands the information that prosecutors must disclose to the defense about a jailhouse witness. It further allows defense attorneys to request hearings for a judge to enforce disclosure requirements.
SB 1385 specifies that prosecutors must disclose specific jailhouse witness information to the defense before trial, including any deals or benefits provided for testimony, their complete criminal history, and previous incentivized testimony given in other cases. The bill requires district attorneys’ offices to centrally track each case in which a jailhouse informant testifies, and to record the benefits provided in each case. The bill creates a statewide record where district attorneys will report this information. The record will be maintained by the Oklahoma District Attorneys Council, which will issue an annual report on aggregate data.
Juvenile Justice Reform
AB 901 repeals the requirement that students determined to be habitually truant, insubordinate, or disorderly be brought to the attention of the juvenile court and the pupil’s probation or parole officer and prohibits a probation department from creating mandated probation conditions for minors not on probation. The bill authorizes a probation officer to refer a minor to services provided by a health agency, community-based organization, local educational agency, or the probation department in lieu of filing a petition to declare a minor a ward of the court.
AB 2425 prohibits the release of information by a law enforcement agency, social worker, or probation agency when a juvenile (1) has completed or is participating in a diversion program, (2) has been counseled and released by police without arrest, citation, detention, or referral to probation or any district attorney, or (3) is a minor who no longer falls within the jurisdiction of the juvenile delinquency court.
SB 823 declares the intent of the Legislature to close the Division of Juvenile Justice and establish a Juvenile Justice Realignment Block Grant program to provide county-based custody, care, and supervision of youth who are realigned from the Division of Juvenile Justice or who could have been eligible for commitment to the division. The bill establishes that any person whose case originated in juvenile court shall remain in a county juvenile facility until he or she turns 25 years of age, with exceptions.
SB 1290 vacates certain county-assessed or court-ordered costs imposed before Jan. 1, 2019, for the parents or guardians of wards in specified circumstances; minors who were ordered to participate in drug and substance abuse testing; and adults who were 21 years of age and under at the time of their home detention.
HB 173 establishes that any person serving a period of incarceration of 25 years or more and who was under the age of 18 at the time of the commission of the offense shall be eligible for parole if he or she served at least 25 years of the sentence; has no major disciplinary offenses in the 12 months prior to parole hearing; completed 100 hours of prerelease programming and substance abuse treatment as applicable; obtained a GED or completed other educational/job skills programs; obtained a low-risk designation determined by a validated risk assessment instrument; and completed a re-entry program.
HB 36 prohibits the assessment of compensation for attorney services against a parent, guardian, custodian, or child in a delinquency proceeding. The bill provides that on Oct. 1, 2020, the balance of any court-ordered fines, fees, or costs previously assessed under the portions of law repealed by the Act are unenforceable and uncollectable and the portion of any judgement that imposed those fines, fees, or costs must be vacated.
S 2511 makes certain provisions relating to sentencing, incarceration, and parole of juveniles effective immediately (approved July 1, 2020) rather than on Nov. 1, 2020. Such provisions include eliminating a number of discretionary fees and mandatory assessments for substance violations and convictions of violent crimes and replacing the current mandatory term of post-incarceration supervision with discretionary supervision imposed only under strictly limited conditions.
HB 593 clarifies that individuals under 18 years old held in custody must be held in a juvenile detention facility. The bill creates an opportunity for an individual who is notified to register as a sex offender to petition a court to review the registration requirement. On the other hand, the bill also increases the criminal court appointed counsel fee and court costs to support Indigent Defense Services and the Criminal Justice Education and Training Standards Commission.
HB 1206 establishes that if a child has been adjudicated delinquent, the court shall enter a decree of disposition according to the least restrictive alternative available in keeping with the best interests of the child.
HB 384 requires a peace officer to have probable cause in order to take a minor into custody and establishes that a probable cause determination and detention hearing must occur within 24 hours of a minor being held for detention, and that a preliminary hearing before a juvenile court must be held to determine whether a minor will be bound over to the district court to be held for trial. The bill allows a juvenile court to extend continuing jurisdiction over a minor up to the age of 25 years old if a minor is not bound over to the district court.
HB 35 / SB 103 provides that any person sentenced to life imprisonment for a single felony or multiple felonies committed as a juvenile and who has served at least 20 years of such sentences shall be eligible for parole.
HB 61 / SB 307 provides that an adult sentenced for a juvenile offense can earn good conduct credit at the rate of one day for each one day served, including all days served while confined in jail or secured detention prior to conviction and sentencing.
HB 477 / SB 546 increases from 14 to 16 years of age the minimum age at which a juvenile must be tried as an adult in circuit court for murder or aggravated malicious wounding. It also raises the minimum age, from 14 years old to 16 years old, at which a Commonwealth’s Attorney can transfer a juvenile to be tried as an adult without court approval and for certain charges requiring notice of intent to try a juvenile as an adult by the attorney for the Commonwealth.
HB 744 provides that a court, in the case of a juvenile tried as an adult and convicted of a felony, may depart from any mandatory minimum sentence and suspend any portion of an otherwise applicable sentence. The bill requires the court to consider a juvenile’s exposure to adverse childhood experiences, early childhood trauma, or any child welfare agency and the differences between juveniles and adults who commit crimes.
HB 1437 reduces from 10 days to 7 days the maximum allowable period of confinement of a juvenile in a secure facility for a contempt violation or when a child in need of supervision is found to have willfully and materially violated an order of the court.
HB 1775 limits the crime of prostitution to individuals age 18 or older, effective Jan. 1, 2024. The bill allows law enforcement to take into protective custody a child who is or is attempting to engage in sexual conduct with another person for money or anything of value for purposes of investigating the individuals who may be exploiting the child and deliver the child to an evaluation and treatment facility. The bill requires the Department of Children, Youth, and Families to convene a workgroup to study and issue recommendations regarding how decriminalizing prostitution for persons under 18 years old will impact law enforcement and prosecutor efforts and the ability to aid in prosecution of a perpetrator or abuser.
HB 2116 establishes an 11-member Task Force on Improving Institutional Educational Programs and Outcomes and directs the task force to examine goals and strategies for improving the coordination and delivery of education services to youth involved with the juvenile justice system.
HB 2277 prohibits the use of solitary confinement in juvenile facilities, limits the use of isolation or room confinement in juvenile facilities, and prohibits juveniles charged as adults from being held in adult jail for longer than 24 hours without a court order. The bill requires adoption of model policy related to juvenile solitary confinement by July 1, 2021, and creates reporting requirements for county and state juvenile detention facilities.
HB 2794 streamlines the sealing of juvenile court records, removing language that previously provided a route not to seal juvenile records. The bill mandates the development of policies and procedures that prevent any information from being included on a student transcript indicating that a student received credit while confined in a detention facility.
SB 6180 allows a juvenile found to have committed assault in the fourth degree with a sexual motivation and who has no history of a prior sex offense to participate in a special sex offender disposition alternative (SSODA) and requires the court to terminate the sex offender registration at the end of the SSODA unless it finds that the juvenile is not sufficiently rehabilitated to warrant removal.
S 234 decriminalizes possession of up to two ounces of marijuana; possession of up to one ounce of marijuana by adults 21 and older is already legal. The bill provides for the automatic expungement of criminal records related to possession or cultivation of less than two ounces of marijuana, which must be completed by Jan. 1, 2022.
HB 972 / SB 2 decriminalizes simple marijuana possession and provides a civil penalty of no more than $25 and makes records relating to the arrest, criminal charge, or conviction of possession of marijuana not open to public inspection and disclosure, except in certain circumstances. The bill prohibits employers and educational institutions from requiring an applicant for employment or admission to disclose information related to such arrest, criminal charge, or conviction.
AB 1196 prohibits a law enforcement agency from authorizing the use of a carotid restraint or choke hold.
SB 217 includes a range of provisions to prevent excessive force by the police and increase transparency and accountability. The bill allows victims of police misconduct to bring a lawsuit for the violation of their constitutional rights and establishes that officers found liable will not be shielded by the doctrine of qualified immunity. It mandates that officers use body cameras by 2023 and requires that video of police misconduct be made publicly available. The bill requires all law enforcement agencies to track and make public data about their encounters with civilians, including data about use of force, civilian searches, forced entries into home, the unholstering and discharge of a firearm, and demographic data. The bill changes use of force standards to require officers to use nonviolent means before resorting to any force and to prohibit (1) chokeholds, (2) deadly force against someone fleeing police who doesn’t pose an immediate risk, (3) and deadly force to arrest people for minor and nonviolent offenses. Under the bill, officers who are found to have used unlawful force, are convicted of a violent offense, tampered with body camera footage to cover up misconduct, or failed to intervene to stop unlawful use of force that results in serious bodily injury or death will lose their P.O.S.T. certification. The bill creates a public database where officers who are found untruthful, terminated for cause, or decertified will be listed to prevent them from moving from one agency to another. Lastly, the bill prohibits law enforcement officers from shooting rubber bullets indiscriminately into a crowd, targeting rubber bullets at someone’s head, torso, or back, and using tear gas without first warning the crowd and giving people time and a route to disperse.
HB 6004 is comprised of many provisions that will take effect on various dates, including: a requirement that State Police officers maintain certification; periodic mental health assessments for police officers; implicit bias training for police officers; public access to certain internal police documents; a requirement that police must prominently display their badge and name; authorization for localities to grant subpoena power to civilian review boards; a study on the use of social workers in responding to certain calls; body camera requirements; limits on consent searches, and on asking for nondriving ID/documentation during certain motor vehicle stops; planning for prosecutorial review of charges prior to case docketing; penalties for bigotry- or bias-based false reporting; limits on chokeholds; a requirement that police and correction officers intervene and report the use of excessive force; the creation of an Office of the Inspector General to investigate use-of-force cases (and prosecute, as warranted); a requirement that the chief medical examiner must investigate deaths of people in police or Department of Correction custody; the prohibition of pedestrian citation quotas, and of new military equipment for police; civil liability for officers who deprive people of certain rights; establishing a task force on the new civil liability; and a requirement that law enforcement units must be accredited.
District of Columbia
B23-825, the Comprehensive Policing and Justice Reform Second Emergency Amendment Act of 2020, prevents the Metropolitan Police Department’s (MPD) union from including provisions related to officer discipline in future collective bargaining agreements. The bill prohibits the use of neck restraints, improves access to body camera recordings, restricts the purchase and use of military weapons and internationally banned chemical weapons, riot gear, and less-lethal projectiles. Under the bill, MPD officers are required to identify themselves as local law enforcement during First Amendment assemblies. The bill amended minimum standards for police officers, expanded mandatory continuing education, and altered the Use of Force Review Board membership. This act expired on Oct. 19, 2020. A similar emergency act, B23-907, was enacted on Nov. 6, 2020, and expires Jan. 25, 2021.
HF 2647 establishes that the attorney general may prosecute a criminal offense committed by a law enforcement officer resulting in the death of another, regardless of whether the county attorney requests the assistance of the attorney general. The bill also restricts use of chokeholds, requires annual training on de-escalation and bias prevention, and establishes grounds for revocation or suspension of the certification of a law enforcement officer or reserve peace officer.
AB 3 authorizes a person to record law enforcement activity in certain circumstances, revises provisions related to the use of force by an officer, and requires an officer to intervene to prevent the use of unjustified force by another officer and report any observations of such unjustified force. The bill also requires law enforcement agencies to adopt a written policy regarding drug and alcohol testing of officers and provide a report to the Legislature containing certain information relating to traffic stops and other stops.
A 3641 requires the Department of Law and Public Safety (DLPS) to incorporate implicit bias and cultural diversity training materials for law enforcement officers and requires all law enforcement agencies to provide cultural diversity and implicit bias training once every five years.
A 10608 requires that any law enforcement or peace officers who discharge their weapon, while on or off duty, where a person could be struck by a bullet from the weapon, is required to verbally report the incident to their supervisor within six hours and file a written report within 48 hours of the incident. The bill provides that officers are not prevented from invoking their constitutional right to avoid self-incrimination.
A 10609 requires courts to compile and publish racial and other demographic data of all low-level offenses, including misdemeanors and violations, and requires police departments to submit annual reports on arrest-related deaths.
A 1360 / SB 3253 provides that a person not under arrest or in the custody of a law enforcement official has the right to record police activity and to maintain custody and control of that recording and of any property used to record police activities. The bill further provides that a person in custody or under arrest does not, by that status alone, forfeit the right to record.
SB 6601 provides that when a person is under arrest or otherwise in the custody of a law enforcement officer or other entity, such officer has a duty to provide attention to the medical and mental health needs of that person.
HB 4207 directs the Department of Public Safety Standards and Training to establish a public statewide online database of suspensions and revocations of officer certifications and discipline records and requires the Department to submit an annual report to the Legislative Assembly on data in the database. The bill also requires that, before extending an offer of employment to an applicant, a law enforcement agency reviews personnel records from all law enforcement agencies in any jurisdiction in which the applicant was employed. The bill requires the Department to deny an application for training or to revoke certification of a police officer upon certain findings.
HB 4208 prohibits law enforcement agencies from using tear gas for purposes of crowd control except in circumstances constituting a riot and establishes certain procedures that law enforcement must follow when using tear gas in circumstances constituting a riot.
S 124 makes state grants to law enforcement agencies and services of the Vermont Criminal Justice Council contingent on a law enforcement agency’s compliance with existing requirements for collecting roadside stop data and reporting to the attorney general when an officer responds to a mental health crisis that results in death or serious bodily injury. It requires law enforcement agencies to report to the Council any credible complaints of alleged professional misconduct rather than reporting to the Council after the agency has conducted an investigation. The bill also requires a potential hiring agency to contact an officer’s current agency about the officer’s performance and provide written disclosure of its analysis. Further, the bill provides a moratorium on law enforcement officers’ use of facial recognition technology until the General Assembly authorizes its use.
S 219 establishes that the Secretary of Administration may only approve grants from law enforcement agencies that have complied with race data reporting requirements within the six months prior to review. The bill provides that roadside stop data must note whether physical force was employed or threatened and whether the force resulted in bodily injury or death. The bill establishes that an officer failing to intervene and report to a supervisor when another officer places a person in a prohibited restraint or uses excessive force constitutes gross professional misconduct. The bill further establishes that a law enforcement officer who employs a prohibited restraint that causes serious bodily injury or death shall be imprisoned for not more than 20 years or fined not more than $50,000, or both. Finally, the bill requires that every law enforcement officer be equipped with a body camera or other video recording device.
HB 1250 prohibits law enforcement from engaging in bias-based profiling and directs the Department of State Police to create the Community Policing Reporting Database for motor vehicle or investigatory stops.
HB 5029 requires that any on-duty law enforcement officer who witnesses another officer engaging or attempting to engage in the use of excessive force must intervene, render aid to any person injured as a result of an officer’s use of excessive force, and report intervention or use of excessive force. The bill establishes that violating provisions of the bill makes an officer subject to disciplinary action.
HB 5051 directs the Department of Criminal Justice Services to adopt standards of conduct applicable to law enforcement and jail officers, and due process procedures for decertification. The bill requires any sheriff, chief of police, or agency administrator to notify the Criminal Justice Services Board in writing within 48 hours of becoming aware that any certified officer currently employed by their agency has been terminated for engaging in misconduct. The bill authorizes the board to initiate decertification proceedings.
HB 5055 / SB 5035 authorizes a locality to establish a civilian oversight body that may receive, investigate, and issue findings on complaints from civilians regarding conduct of law enforcement officers and civilian employees. The bill enables oversight bodies to make binding disciplinary determinations and to review policies and practices, internal investigations, and annual expenditures of law enforcement agencies and issue recommendations. The bill has a delayed effective date of July 1, 2021.
HB 5058 / SB 5029 prohibits police officers from stopping drivers for reasons including operating without a light illuminating a license plate or operating with defective equipment, and prohibits officers from conducting stops, searches, or seizures based solely on the odor of marijuana.
HB 5069 prohibits the use of neck restraints except when it is immediately necessary to protect the officer or another person.
HB 5099 prohibits any law enforcement officer from seeking or executing a no-knock search warrant. The bill also requires search warrants to be executed only in the daytime unless a judge or magistrate authorizes execution of such search warrant at another time for good cause shown, or in the case that the search warrant is for the withdrawal of blood.
HB 5104 provides that the head of any agency or department employing law enforcement officers must disclose to a prospective law enforcement or jail employer any information related to: (1) an arrest or prosecution of a former officer (including expunged information); (2) a civil suit regarding performance of an officer’s duties; (3) any internal investigation involving misconduct; and (4) dismissal, demotion, suspension, or transfer of an officer. The bill provides that no officer may be employed by another law enforcement agency or jail until the requested information is received from all prior employing agencies in the Commonwealth.
HB 5108 requires the Criminal Justice Services Board and its Committee on Training to include a representative from the Virginia Indigent Defense Commission, a representative of a social justice organization, representatives of community interests of minorities, and a mental health service provider.
HB 5109 requires the Department of Criminal Justice Services to establish compulsory in-service training standards for law enforcement officers that cover relevant state and federal laws; awareness of cultural diversity and the potential for bias-based profiling; de-escalation techniques; working with individuals with disabilities, mental health needs, or substance use disorders; and the lawful use of force, including the use of deadly force only when necessary to protect the law enforcement officer or another person.
SB 5014 requires all law enforcement officers involved in a crisis intervention team program to complete a comprehensive advanced training course. The bill also requires the Department of Criminal Justice Services to establish training standards for personnel concerning awareness of systemic and individual racism and the potential for bias-based profiling.
SB 5030 incorporates HB 5045, HB 5069, HB 5099, HB 5104, HB 5109, and SB 5014. The bill also expands required data collection for motor vehicle stops to include all investigatory motor vehicle stops, all stop-and-frisks based on reasonable suspicion, and all investigatory detentions that do not result in arrest or summons. The bill requires all chief law enforcement officers to provide the attorney for the Commonwealth access to all records relating to wrongful arrest or other complaints made against an officer employed in their agency when such officer has a matter before the court. The bill’s data collection provisions have a delayed effective date of July 1, 2021.
SB 435 (The Debbie Vance Act) provides that the court imposing a sentence may grant the relief of vacatur for convictions and sentences of defendants who obtained such convictions and sentences as a direct result of being victims of trafficking for labor or sexual servitude.
SB 206 alters the eligibility for the filing of a motion to vacate judgement if the person’s participation in the offense was a direct result of being a victim of human trafficking and requires that a certain motion be mailed to a victim or victim’s representative if the qualifying offense occurred within five years before the filing of the motion.
HB 324 allows prosecution agencies to create conviction integrity units to review convictions and gives the district court the discretion to provide release.
HB 974 / SB 511 provides that a person who was convicted of a felony or who was adjudicated delinquent by a circuit court of an offense that would be a felony if committed by an adult may petition for a writ of actual innocence based on biological or nonbiological evidence regardless of the type of plea entered at trial. The bill allows a writ of actual innocence based on nonbiological evidence to be granted if scientific testing of previously untested evidence, regardless of whether such evidence was available or known at the time of conviction, proves that no trier of fact would have found proof of guilt of the person petitioning for the writ, provided that the testing procedure was not available at the time of conviction. Further, the bill eliminates the provision that limits a petitioner to only one writ of actual innocence based on nonbiological evidence for any convictions. Under the bill, the petitioner must prove the allegations supporting either type of writ of actual innocence by a preponderance of the evidence (as opposed to current standard of clear and convincing evidence). The bill clarifies that the attorney general may join a petition for a writ of actual innocence filed in connection with an adjudication of delinquency.
SB 1071 permits accredited private laboratories to complete post-conviction testing of DNA.
Restoration of Rights
AB 2147 allows a defendant who successfully participated in the California Conservation Camp Program or a county incarcerated individual hand crew and has been released from custody to petition to withdraw a plea of guilty or nolo contendere and enter a plea of not guilty. The bill allows the court to dismiss the accusations and release a defendant eligible for relief from all penalties resulting from the offense and requires the court to order the early termination of probation, parole, or supervised release if the defendant has not violated any terms of his or her release during the pendency of the petition. Under the bill, persons convicted of specified violent felonies and sex offenses are ineligible for relief.
HB 1424 establishes that an individual who was arrested or convicted of a marijuana offense, or and individual whose immediate family member was arrested or convicted of a marijuana offense or subject to civil asset forfeiture related to a marijuana investigation, qualifies as a social equity licensee and may apply for any regulated marijuana business license or permit. It further establishes that the governor may grant pardons to a class of defendants who were convicted of the possession of up to two ounces of marijuana.
HB 799 repeals a prohibition on early license reinstatement and limited driving permits for any person whose license is suspended for being in control of a moving vehicle under the influence of a controlled substance or marijuana (allows limited driving permit for DUI-drugs).
HB 993 dissolves the Child Abuse Registry.
SB 288 provides for the automatic restriction of certain criminal history record information of arrests when there has been a final disposition other than a conviction or a certain time period and conditions are met since a conviction.
SF 2348 was passed as the implementing legislation for HJR 14, a constitutional amendment that would have restored felon voting rights upon discharge after completion of their sentences, including parole/probation, restitution, and court fines and fees. The bill takes effect upon the ratification of a constitutional amendment relating to the restoration of voting rights of people with felony convictions upon the discharge of a criminal sentence. The bill will be repealed if a relevant constitutional amendment is not ratified prior to Jan 1, 2023.
HB 327 provides for automatic expungement of acquittals and dismissals with prejudice occurring after the effective date of the Act, allows expungement of past acquittals and dismissals with prejudice by petition, and allows expungement of felony charges held to the grand jury that have not resulted in an indictment after 12 months.
HB 129 provides that, in addition to the district attorney declining to prosecute any offense arising out of an arrest, a person may file a motion to expunge a record of arrest for a felony or misdemeanor offense that did not result in a conviction if the person successfully completes a pretrial diversion program.
HB 194 amends forms for a motion for expungement, order of expungement, and supplemental forms to include options for which a person received a first offender pardon for an eligible offense.
HB 241 repeals limitations on obtaining expungements for misdemeanor and felony convictions. The bill limits the prohibition on filing a motion to expunge a record of arrest that did not result in a conviction or to expunge a record of an arrest and violation of a misdemeanor or felony offense to only those persons who are in the physical custody of the Department of Safety and Corrections and serving a sentence at hard labor.
HB 4980, HB 4981, HB 4982, HB 4983, HB 4984, HB 4985, and HB 5120 constitute a bundle of expungement legislation that describes which types of convictions can be set aside automatically, which require someone to file an application, and various restrictions related to setting aside convictions. HB 4980 prescribes circumstances under which certain convictions would have to be set aside without filing an application and requires the Department of Technology, Management, and Budget to develop and maintain a computer-based program for setting aside convictions. Under this bill, after an order to set aside a conviction has been entered or after the automatic setting aside of a conviction, the applicant would be considered not to have been previously convicted, except for the purposes of charging certain crimes as a second or subsequent offense, and except when the conviction was for a sex offense. HB 4981 outlines which convictions cannot be set aside, including felonies for which a maximum punishment is life imprisonment, felony convictions for domestic violence, and traffic offenses that include operating while intoxicated. HB 4982 allows a person convicted of one or more misdemeanor marijuana offenses to apply to set aside the convictions and specifies that there will be a rebuttable presumption that a conviction for a misdemeanor marijuana offense sought to be set aside was based on activity that would not have been a crime if committed on or after Dec. 6, 2018. HB 4983 prescribes waiting periods before a person can file an application to set aside a conviction, requires an applicant to submit a $50 fee, and requires a copy of the application to be served on the attorney general and to the office of each prosecuting attorney relevant to the crimes the applicant is seeking to set aside. HB 4984 modifies circumstances under which a person can file an application to set aside convictions. HB 4985 requires that more than one felony offense or misdemeanor offense be treated as a single felony or misdemeanor conviction if the underlying offenses occurred within 24 hours and arose from the same transaction, provided that none of those offenses constitute as assaultive crime, a crime involving the use or possession of a dangerous weapon, or a crime with a max penalty of 10 or more years of imprisonment. HB 5120 prohibits an applicant from seeking resentencing in another case the applicant was sentenced for during which the convictions at issue were used in determining the appropriate sentence, if an application were granted for the conviction to be set aside. It also allows an aggrieved party to seek a rehearing or reconsideration.
HB 4210 eliminates the authority of courts to impose personal and commercial driving privilege suspensions for failure to pay traffic-related fines or meet requirements ordered in lieu of fines.
HB 440 expands Pennsylvania’s clean slate law by removing the requirement that individuals pay any outstanding court-ordered financial obligations before eligible cases can be sealed. The bill specifies that restitution owed for convictions is not waived under these provisions. The bill further provides that when a person receives a pardon, that record is automatically sealed, and if a person receives a not guilty verdict, then the record is expunged.
SB 637 establishes that convictions disqualifying someone from obtaining an occupational license must be directly related to the duties and practice of the occupation for which the individual seeks licensure. The bill requires boards under the Bureau of Professional and Occupational Affairs to publish lists of crimes that are directly related to each profession and that will be applied in licensure decisions. The bill also allows individuals, prior to taking out student loans and enrolling in classes, to receive a preliminary decision on whether their records would preclude a license. Finally, the bill permits restricted licenses for individuals who have been trained at taxpayer expense in state correctional institutions, even in cases in which they would otherwise be denied due to their records.
HB 1047 allows a victim of human trafficking to petition the court for the expungement of a delinquency record that resulted from being a victim of human trafficking or sexual exploitation.
SB 96 prohibits the denial of Temporary Assistance for Needy Families (TANF) benefits based solely on a controlled substance felony.
HB 397 specifies that when determining whether to issue a certificate of eligibility for expungement, the Bureau of Criminal Identification may not consider pending or previous infractions, traffic offenses, minor regulatory offenses, or clean slate eligible cases that were automatically expunged. The bill clarifies that an individual whose record consists solely of one or more nonjudicial adjustments may petition for expungement if the individual has reached 18 years old and has completed the conditions of the adjustment. Under the bill, the court is required to, without a hearing, order expungement of all the petitioner’s records under the control of the juvenile court, an agency, or an official upon filing of the petition. Courts are prohibited from charging a fee for expungement, except for a filing fee for a petition.
SB 121 establishes that if a petitioner is not qualified to receive a certificate of eligibility for expungement, he or she may file a petition without a certificate to obtain expungement for a record of conviction related to cannabis possession under certain conditions.
SB 201 establishes that when determining whether to refuse to issue or renew a license based solely on a criminal conviction, the Division of Occupational and Professional Licensing must consider the individual’s current circumstances and testimonials provided by others and determine whether the conviction bears a substantial relationship to the individual’s ability to practice the occupation safely or competently. The bill establishes that a conviction for which an individual’s incarceration ended more than seven years before the date of consideration does not constitute evidence of engaging in unprofessional conduct, with exceptions.
HB 103 requires institutions of higher education to adopt a policy for, with good cause and after three years, the expungement of notations indicating past suspension, dismissal, or withdrawal from the institution while under investigation for an offense involving sexual violence.
HB 757 prohibits state agencies and localities from asking about previous arrests, charges, or convictions of any crime on an employment application or to a prospective employee unless it is during or after a staff interview. These provisions do not apply to applications for law-enforcement agencies, state agency positions designated as sensitive or expressly permitted to inquire, or local school boards.
HB 909 / SB 513 removes existing provisions that allow suspension of an individual’s driver’s license because that individual (1) is convicted of or placed on deferred disposition for a drug offense, (2) fails to pay certain fees owed to a local correctional facility or regional jail, or (3) is found to have shoplifted motor fuel.
HB 1196 / SB 1 repeals the requirement that an individual convicted of any violation of the law, who fails or refuses to provide for immediate payment of fines or costs, receive a driver’s license suspension. The bill further requires the Commissioner of the Department of Motor Vehicles to return or reinstate any person’s driver’s license that was suspended prior to July 1, 2019, solely for nonpayment of fines or costs, without a reinstatement fee.
HB 5062 / SB 5033 requires a court to grant a motion to dismiss made by the Commonwealth, and with the consent of the defendant, unless the court finds that the motion was made as a result of bribery or bias toward a victim because of race, religion, gender, disability, sexual orientation, or national origin. The bill provides that, upon agreement of the Commonwealth and defendant, a trial court may defer proceedings, defer entry of a conviction order or final order, and continue the case for final disposition.
SB 640 creates a process by which unlawful detainer actions filed in a general court that have been dismissed or nonsuited may be expunged upon request of the defendant to such action. This bill has a delayed effective date of Jan. 1, 2022.
HB 4353 creates a rational nexus requirement between prior criminal conduct and initial licensure decision-making and removes convictions described as offenses of moral turpitude as a basis for license denial unless the underlying crime bears a rational nexus to the occupation. The bill also limits licensure disqualification and authorizes individuals to petition licensure commissions as to whether an individual’s criminal record precludes licensure.
HB 4958 ends the practice of suspending driver’s licenses due to unpaid court fines and fees and requires the court to offer payment plans for individuals who cannot pay the entire sum up front.
The bill also retroactively allows individuals whose licenses are already suspended to pay a $25 fee to have their driver’s license reinstated and enter into a payment plan with the court.
SB 562 allows a person seeking expungement of convictions in multiple counties to file the petition in his or her county of residence. The bill modifies non-expungeable offenses to allow expungement of burglaries of buildings that are not dwellings. The bill also allows expungement of an unrelated felony if the individual has a conviction for driving under the influence that is at least five years old. The bill clarifies that the burden of proof is on the petitioner to prove by clear and convincing evidence that the convictions for which expungement is sought are the only convictions for the specified offenses against the petitioner in the state.
AB 79 revises the definition of developmental disability and expands the offenses to which the existing diversion program applies to include any misdemeanor or felony offense, with specified exceptions. The bill specifies circumstances under which a court may hold a hearing to reinstate diverted criminal proceedings, based on subsequent actions of the defendant.
AB 1304 establishes the California MAT Re-Entry Incentive Program, which makes a person released on parole who had been enrolled in or successfully completed an institutional substance abuse program eligible for a reduction in the period of parole. The bill authorizes a 30-day reduction for each six months of treatment successfully completed that is not ordered by the court, up to a maximum 90-day reduction.
AB 1869 makes 23 changes to criminal administrative fees, including repealing statutes requiring fees related to public defense and cost of counsel, costs associated with arrest, administrative and citation processing fees, interstate compact supervision fees, alternative custody and home detention fees, and probation-related fees. The bill renders unpaid balances related to the eliminated fees uncollectable. The bill has a delayed effective date of July 1, 2021.
AB 1950 restricts the period of probation for a misdemeanor to no longer than one year, with exceptions. For other crimes, the bill authorizes a court to impose a term of probation not longer than two years, rather than as long as the maximum term for which the person could be imprisoned.
AB 2542 prohibits the state from seeking a criminal conviction, sentence, or juvenile adjudication on the basis of race, ethnicity, or national origin, and allows a writ of habeas corpus to be prosecuted on the basis of that prohibition. The bill permits a defendant to file a motion requesting the disclosure of all evidence relevant to a potential violation of the prohibition that is in the control of the prosecutor and would require a court to order those records released upon good cause shown. The bill provides that when a court finds that there has been a violation of this prohibition, the defendant becomes ineligible for the death penalty. The bill also allows a person no longer imprisoned or restrained to file a motion to vacate a conviction or sentence if it was sought or imposed on the basis of race, ethnicity, or national origin. The provisions of this bill only apply prospectively to cases in which judgement has been entered before Jan. 1, 2021.
AB 3070 prohibits a party from using a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups. The bill allows a party, or the trial court on its own motion, to object to the use of a peremptory challenge based on these criteria and requires the party exercising the challenge to state the reasons the challenge has been exercised. The bill establishes that if the court grants an objection, it is authorized to start a new jury selection, declare a mistrial at the request of the objecting party, or seat the challenged juror. The bill subjects the denial of an objection to de novo review by an appellate court.
AB 3234 authorizes a judge to offer misdemeanor diversion to certain defendants over the objection of a prosecuting attorney and to continue a diverted case up to 24 months. The bill also reduces the minimum age limit for the Elderly Parole Program to 50 years of age and the required number of years of continuous incarceration that an individual must have served in order to be eligible for the program to 20 years.
District of Columbia
B23-0733 (COVID-19 Response Supplemental Emergency Amendment Act of 2020) temporarily expanded the pool of people convicted under local D.C. law but serving time in the federal Bureau of Prisons who are eligible to apply for early release. The Act expired on July 9, 2020. Language to make these provisions permanent is included in B23-0127, currently under consideration.
HB 984 clarifies sentence commencement subsequent to appeal, ensures that individuals receive credit for time served ahead of each criminal conviction, and serves as a response to Gray v. State by allowing judges sufficient time to consider and rule on sentencing modification requests.
HB 1346 adds members to the justice reinvestment advisory council, including members of the Indiana evidence-based decision-making initiative. The bill outlines the duties of the council: (1) conduct a review of jail overcrowding and identify a range of possible solutions and (2) develop incarceration alternatives and recidivism reduction programs at the county and community level.
HB 77 provides that a probation and parole officer may utilize technology portals, including cellphones, that allow voice and video communication between the defendant and probation officer. The bill requires the Department of Public Safety and Corrections to create minimum standards for the technology portals and for the eligibility criteria used to determine whether individuals are eligible to meet their reporting requirements through the use of technology portals.
HB 178 provides that the court may defer sentences for violations of the Uniform Controlled Dangerous Substances Law that are punishable by up to 10 years (previously five years). The bill also allows a maximum of two dismissals from prosecution, rather than a maximum of one dismissal.
A 1076 requires the attorney general to collect, record, analyze, and issue annual reports on prosecutorial and criminal justice data including race, ethnicity, gender, and age-related information.
A 2370 establishes a compassionate release program for certain individuals determined to be suffering from a terminal condition or permanent physical incapacity. However, the bill also provides that if the State Parole Board determines that the individual is no longer so debilitated or incapacitated as to be physically incapable of committing a crime, the Parole Board must notify the prosecutor, who may initiate proceedings to return the individual to confinement.
A 4371 requires a study to determine the fiscal impact of cost savings resulting from a reduction of the prison population due to any compassionate release program, as well as the elimination of mandatory minimum terms of parole ineligibility for certain individuals. The bill provides that any cost savings realized as a result of the study shall be deposited into the “Corrections Rehabilitation and Crime Prevention Fund,” a non-lapsing fund to support recidivism reduction programs.
S 2519 requires public health emergency credits to be awarded to certain incarcerated individuals, including juveniles, who are scheduled to be released within 365 days. The bill also provides that public health emergency credits shall be awarded to individuals on parole whose term of parole expires within 365 days. Credits are awarded at a rate of 122 days for each month served, for a maximum of 244 days of remission.
AB 5045 authorizes a court to waive certain surcharges and fees for a defendant who was under the age of 21 at the time the offense was committed, and for which the imposition of such a surcharge or fee would: (1) cause unreasonable hardship for the defendant or the defendant’s family, or (2) adversely impact the defendant’s reintegration into society.
SB 2734 decreases the designated “school zone” area from within 1,000 feet of a school to within 500 feet.
HB 288 requires various agencies to provide certain demographic data and policies to the Commission on Criminal and Juvenile Justice. Under the bill, the Administrative Office of the Courts must provide demographic data for each criminal case filed and indicate whether the defendant was represented by a public defender, private counsel, or pro se. County jails are required to provide demographic data on all bookings into the facility. Prosecutorial agencies must provide demographic data on all cases referred to it from law enforcement, and data about filing charges, diversion, bail, and discovery disclosure. Further, all prosecutorial agencies are required to publish specific office policies, or affirmatively disclose the fact that they do not maintain a policy, on screening and filing criminal charges, plea bargains, sentencing recommendations, discovery practice, prosecution of juveniles, collection of fines and fees, asset forfeiture practices, services available to victims of crime, diversion programs, and restorative justice programs.
HB 441 allows either party to request that the court enter a judgment for conviction to a lower degree of offense. The bill allows a prosecutor to file or amend an information for certain offenses at one degree lower than the offense in the information and provides that the court may enter a conviction and impose a sentence for an offense one degree lower.
S 338 establishes an avenue for certain individuals to become eligible for parole consideration before reaching their minimum sentences and establishes two tiers of presumptive parole to be rolled out over the next three years. The bill allows incarcerated individuals to earn seven days off their minimum sentence for every month they are incarcerated without receiving a major disciplinary violation and eliminates the requirement that an individual participate in DOC-recommended programming in order to earn good time. The bill also mandates the development of recommendations addressing racial and geographic disparities in sentencing.
HB 33 / SB 793 provides that a person is eligible to be considered for parole if the person was sentenced by a jury prior to the date of the Virginia Supreme Court decision in Fishback v. Commonwealth, for a felony committed on or after the abolition of parole going into effect and who remained incarcerated on July 1, 2020, with exceptions. The bill requires the Parole Board to establish procedures for consideration of parole and provides that any person eligible for parole as of July 1, 2020, shall be scheduled for a parole interview no later than July 1, 2021, with exceptions.
HB 995 / SB 788 increases from $500 to $1,000 the threshold amount of money taken or value of goods or chattel taken at which the crime rises from petit larceny to grand larceny. The bill also increases the threshold by the same amount for the classification of certain property crimes.
HB 5148 establishes a four-level classification system for awarding and calculating earned sentence credits and specifies certain crimes that are subject to a maximum 4.5 earned sentence credits for each 30 days served. The bill requires the Department of Corrections to convene a work group to study the impact of the sentence credit amendments set forth in the bill and directs the work group to report its membership and plan for conducting the study by July 1, 2021, and to report its finding and conclusions by Dec. 1, 2022. Provisions of the bill requiring the calculation of earned sentence credits to apply retroactively to the entire sentence of an individual who is confined in a state correctional facility and participating in the earned sentence credit system go into effect Jan. 1, 2022.
SB 133 allows a court to defer and dismiss a criminal case in which the defendant has been diagnosed with autism or an intellectual disability and the court finds by clear and convincing evidence that the criminal conduct had a direct and substantial relationship to the person’s disorder or disability.
SB 711 eliminates the mandatory minimum term of 10 days in jail for a third or subsequent conviction of driving on a suspended license.
SB 5007 provides that in a criminal case, the court shall ascertain the extent of the punishment unless the accused has requested jury sentencing or was found guilty of capital murder. The bill also provides that if a jury cannot agree on a punishment, the court will decide the punishment. The bill has a delayed effective date of July 1, 2021.
SB 5018 provides that any person serving a sentence for a felony conviction who is terminally ill is eligible for consideration by the Parole Board for conditional release, with exceptions. Exceptions include those serving a sentence for a Class 1 felony, certain sex offenses, and certain crimes involving a minor victim, among others.
HB 4004 establishes the West Virginia Sentencing Commission, with the purpose of promoting sentencing that more accurately reflects the time an individual will actually be incarcerated, reducing sentencing disparities between individuals with similar criminal histories, preserving meaningful judicial discretion, and determining whether the state needs to set out all criminal offenses in terms of priority and in order of severity and harm to society, and to provide alternatives to incarceration for certain offenses. The bill provides that the commission shall provide a report on its findings and recommendations to the Legislature on or before Jan. 1, 2022.
SB 620 authorizes the Commissioner of the Division of Corrections and Rehabilitation to approve home plans for incarcerated individuals and to establish a nonviolent offense parole program.
SB 145 provides the same discretion to judges that they already have in cases of vaginal sex to cases of oral and anal sex, regarding sex offender registration for an individual that had voluntary sex with someone 14 to 17 years old and was no more than 10 years older than the person.
HB 344 establishes that no person incarcerated in any correctional institution who is pregnant, is less than eight weeks post-medical release following a pregnancy or is caring for a child in a correctional institution, shall be placed in solitary confinement, with exceptions.
LB 230 prohibits placement of a juvenile into room confinement for punishment or retaliation, or to manage a staff shortage. The bill requires that all other less-restrictive alternatives be exhausted before a juvenile is placed into room confinement and prohibits placement of a juvenile in room confinement for longer than the minimum time required to eliminate the substantial and immediate risk of harm to self or others.
HB 1284 directs the Board of Corrections, in consultation with a stakeholder work group, to conduct a review of the standards and requirements governing, and the application and use of, isolated confinement in correctional facilities.
HB 1648 requires the Department of Corrections to include training on the general care of pregnant women and the impact of restraints, restrictive housing/solitary confinement, and body cavity searches on such individuals in the training it provides for state and juvenile correctional officers who may have contact with pregnant individuals.
AB 904 specifies that a tracking device is one that includes any software that permits the tracking of the movement of a person or object.
S 124 establishes a moratorium on law enforcement officers’ use of facial recognition technology until the General Assembly authorizes its use.
SB 6280 requires any state or local government agency intending to use or develop a facial recognition service to create an accountability report, including a description of the proposed use of the service, information on the service’s rate of false matches, data security measures, procedures for testing, and channels for receiving feedback. The bill prohibits an agency from using a facial recognition service for ongoing surveillance or to conduct real-time identification unless a warrant is obtained or exigent circumstances exist. Under the bill, law enforcement agencies cannot use the results of a facial recognition service as the sole basis to establish probable cause in a criminal investigation. The bill requires agencies to disclose their use of facial recognition on a criminal defendant to that defendant in a timely manner prior to trial. This bill has a delayed effective date of July 1, 2021.
About the Authors
Monica L. Reid is NACDL’s Director of Advocacy.
Nora Zimmerman is NACDL’s State Advocacy Assistant.