New Laws Bring Criminal Justice Reform to Virginia

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The bills summarized here were passed by the Virginia Legislature during its 2020 Special Session. They were signed into law on October 28, 2020. The full text of each bill can be found at: https://lis.virginia.gov/

HB 5099 Search warrants; provide notice of authority.

SUMMARY AS PASSED —– Search warrants; provide notice of authority. Prohibits any law-enforcement officer from seeking, executing, or participating in the execution of a no-knock search warrant. The bill provides that, for all authorized search warrants, the law-enforcement officer be recognizable and identifiable as a uniformed law-enforcement officer and that he provide audible notice of his authority and purpose reasonably expected to be heard by occupants of such place to be searched prior to the execution of such search warrant. It also requires that after entering and securing the place to be searched and prior to undertaking any search or seizure pursuant to the search warrant, the executing officer shall read and give a copy of the search warrant to the person to be searched or the owner of the place to be searched or, if the owner is not present, to any occupant of the place to be searched. If the place to be searched is unoccupied, the executing law-enforcement officer shall leave a copy of the search warrant suitably affixed to the place to be searched. The bill requires search warrants to be executed only in the daytime unless (i) a judge or magistrate, if a judge is not available, authorizes the execution of such search warrant at another time for good cause shown or (ii) the search warrant is for the withdrawal of blood.

HB 5049 Law-enforcement agencies; acquisition and use of military property.

SUMMARY AS PASSED —– Acquisition and use of military property by law-enforcement agencies. Provides that no state or local law-enforcement agency shall acquire or purchase (i) weaponized unmanned aerial vehicles; (ii) aircraft that are configured for combat or are combat-coded and have no established commercial flight application; (iii) grenades or similar explosives or grenade launchers from a surplus program operated by the federal government; (iv) armored multi-wheeled vehicles that are mine-resistant, ambush-protected, and configured for combat from a surplus program operated by the federal government; (v) bayonets; (vi) firearms of .50 caliber or higher; (vii) ammunition of .50 caliber or higher; or (viii) weaponized tracked armored vehicles. These provisions do not apply to the Virginia National Guard or Virginia Defense Force. The bill prohibits the use of such military property by a law-enforcement officer unless a waiver has been granted by the Criminal Justice Services Board. The bill prohibits the use of kinetic impact munitions unless their use is necessary to protect a law-enforcement officer or another person from bodily injury. “Kinetic impact munitions” includes impact rounds and baton rounds, such as rubber batons, bean bag rounds, foam baton rounds, and plastic, wax, wood, or rubber-coated projectiles. The bill directs the Department of Criminal Justice Services (the Department) to establish training standards for law enforcement on the use of kinetic impact munitions and tear gas. The bill directs the Department to adopt emergency regulations to implement the provisions of the bill.

HB 5109 Law-enforcement officer training & qualifications; DCJS to develop uniform curriculum & plans, etc.

SUMMARY AS PASSED —– Department of Criminal Justice Services; law-enforcement officer training and qualifications. Requires the Department of Criminal Justice Services (the Department) to develop a uniform curriculum and lesson plans for the compulsory minimum entry-level, in-service, and advanced training standards to be employed by criminal justice training academies approved by the Department when conducting training. The bill also requires the Department to include the recognition of implicit biases in interacting with persons who have a mental illness, substance use disorder, or developmental or cognitive disability in its (i) training standards and model policies; (ii) compulsory training standards for basic training and recertification of law-enforcement officers; and (iii) operating procedures, guidelines, and standards for community policing in order to ensure sensitivity to and awareness of systemic and individual racism, cultural diversity, and the potential for bias-based profiling. The bill also requires the Department to include training in de-escalation techniques and training in the lawful use of force, including the use of force only when necessary to protect the law-enforcement officer or another person in the compulsory training standards for basic training and recertification.

The bill requires the Department to establish compulsory in-service training standards for law-enforcement officers in the following subjects: (a) relevant state and federal laws; (b) awareness of cultural diversity and the potential for bias-based profiling; (c) de-escalation techniques; (d) working with individuals with disabilities, mental health needs, or substance use disorders; and (e) the lawful use of force, including the use of deadly force only when necessary to protect the law-enforcement officer or another person.

In addition, the bill adds to the minimum qualifications to become a law-enforcement officer or a jail officer the requirement that such person undergo a psychological examination, subsequent to a conditional offer of employment, conducted under the supervision of a licensed psychologist or other licensed mental health professional. The bill requires the Department to establish requirements for compulsory mental health examinations for law-enforcement officers, jail officers, and correctional officers that include guidelines on the implementation of such mental health examinations.

Finally, the bill requires any criminal justice training academy approved by the Department to employ such uniform curriculum and lesson plans and requires the Department to conduct annual evaluations of each criminal justice training academy’s compliance with uniform curriculum and lesson plans. The bill allows an approved criminal justice training academy to petition the Department for a waiver and requires the Department to grant a waiver if the academy meets and exceeds compulsory minimum training standards and substantially complies with the content of uniform curriculum and lesson plans developed by the Department.

HB 5109 Law-enforcement officer training & qualifications; DCJS to develop uniform curriculum & plans, etc.

SUMMARY AS PASSED —– Department of Criminal Justice Services; law-enforcement officer training and qualifications. Requires the Department of Criminal Justice Services (the Department) to develop a uniform curriculum and lesson plans for the compulsory minimum entry-level, in-service, and advanced training standards to be employed by criminal justice training academies approved by the Department when conducting training. The bill also requires the Department to include the recognition of implicit biases in interacting with persons who have a mental illness, substance use disorder, or developmental or cognitive disability in its (i) training standards and model policies; (ii) compulsory training standards for basic training and recertification of law-enforcement officers; and (iii) operating procedures, guidelines, and standards for community policing in order to ensure sensitivity to and awareness of systemic and individual racism, cultural diversity, and the potential for bias-based profiling. The bill also requires the Department to include training in de-escalation techniques and training in the lawful use of force, including the use of force only when necessary to protect the law-enforcement officer or another person in the compulsory training standards for basic training and recertification.

The bill requires the Department to establish compulsory in-service training standards for law-enforcement officers in the following subjects: (a) relevant state and federal laws; (b) awareness of cultural diversity and the potential for bias-based profiling; (c) de-escalation techniques; (d) working with individuals with disabilities, mental health needs, or substance use disorders; and (e) the lawful use of force, including the use of deadly force only when necessary to protect the law-enforcement officer or another person.

In addition, the bill adds to the minimum qualifications to become a law-enforcement officer or a jail officer the requirement that such person undergo a psychological examination, subsequent to a conditional offer of employment, conducted under the supervision of a licensed psychologist or other licensed mental health professional. The bill requires the Department to establish requirements for compulsory mental health examinations for law-enforcement officers, jail officers, and correctional officers that include guidelines on the implementation of such mental health examinations.

Finally, the bill requires any criminal justice training academy approved by the Department to employ such uniform curriculum and lesson plans and requires the Department to conduct annual evaluations of each criminal justice training academy’s compliance with uniform curriculum and lesson plans. The bill allows an approved criminal justice training academy to petition the Department for a waiver and requires the Department to grant a waiver if the academy meets and exceeds compulsory minimum training standards and substantially complies with the content of uniform curriculum and lesson plans developed by the Department.

HB 5104 Law-enforcement officers, deputy sheriff, etc.; minimum qualifications, disclosure of information.

SUMMARY AS PASSED —– Minimum qualifications for law-enforcement officer, etc.; disclosure of information. Provides that any sheriff or chief of police, the director or chief executive of any agency or department employing deputy sheriffs or law-enforcement officers, and the Director of the Department of Criminal Justice Services shall disclose to a prospective law-enforcement or jail employer any information (i) related to an arrest or prosecution of a former police officer, deputy sheriff, or jail officer, including expunged information; (ii) related to a civil suit regarding a former police officer’s, deputy sheriff’s, or jail officer’s employment or performance of his duties; (iii) obtained during the course of any internal investigation related to a former police officer’s, deputy sheriff’s, or jail officer’s alleged criminal conduct, use of excessive force, or other official misconduct in violation of the state professional standards of conduct; and (iv) related to a former police officer, deputy sheriff, or jail officer’s job performance that led to dismissal, demotion, suspension, or transfer. The bill further provides that no police officer, deputy sheriff, or jail 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. The bill authorizes a hiring law-enforcement agency or jail to require a candidate for employment to undergo a psychological examination, subsequent to a conditional offer of employment, conducted under the supervision of a licensed psychiatrist or a licensed clinical psychologist. The bill requires the Department of Criminal Justice Services to establish guidelines for such examinations.

HB 5108 Criminal Justice Services Board and Committee on Training; change in membership & responsibilities.

SUMMARY AS PASSED —– Criminal Justice Services Board; Committee on Training; membership and responsibilities. Changes the membership of the Criminal Justice Services Board and its Committee on Training by requiring that some members be representatives of a social justice organization, representatives of community interests of minorities, and mental health service providers. The bill requires that the Committee on Training include a representative from the Virginia Indigent Defense Commission, a representative of the community interests of minorities, and a mental health service provider. In addition, the bill permits the Committee on Training to appoint curriculum review committees.

HB 5051 Law-enforcement officers or jail officers; notice to Criminal Justice Services Board of misconduct.

SUMMARY AS PASSED —– Decertification of law-enforcement officer. 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 based on serious misconduct in violation of those standards. 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 law-enforcement or jail officer currently employed by his agency has been terminated for engaging in misconduct, as set forth in the bill. The bill authorizes the Board to initiate decertification proceedings against any current or former law-enforcement or jail officer who has engaged in such activities. The bill directs the Department to adopt emergency regulations to implement the provisions of the bill.

HB 5069 Law-enforcement officers; prohibition on the use of neck restraints, exception, penalties.

SUMMARY AS PASSED —– Law-enforcement officers; prohibition on the use of neck restraints. Prohibits a law-enforcement officer from using a neck restraint in the performance of his official duties and provides for disciplinary sanctions on an officer who uses a neck restraint. The bill provides an exception from the prohibition if a neck restraint is immediately necessary to protect the officer or another person. The bill defines “neck restraint” as the use of any body part or object to attempt to control or disable a person by applying pressure against the neck, including the trachea or carotid artery, with the purpose, intent, or effect of controlling or restricting the person’s movement or restricting the person’s blood flow or breathing, including chokeholds, carotid restraints, and lateral vascular neck restraints.

HB 5029 Law-enforcement officer; failure to intervene in an unlawful use of excessive force, penalties.

SUMMARY AS PASSED —– Law-enforcement officer; failure to intervene in an excessive use of force; penalties. Requires that any law-enforcement officer who while in the performance of his official duties witnesses another law-enforcement officer engaging or attempting to engage in the use of excessive force, defined in the bill, against another person shall intervene, when such intervention is objectively reasonable and possible, to end the use of excessive force or attempted use of excessive force, or to prevent the further use of excessive force. The bill also requires a law-enforcement officer to render aid, as circumstances objectively permit, to any person injured as the result of such use of excessive force. The bill requires a law-enforcement officer to report intervention or use of excessive force in accordance with his employing agency’s policies for reporting misconduct. The bill provides that any law-enforcement officer who violates the provisions of the bill shall be subject to disciplinary action.

HB 5045 Inmate, parolee, probationer, detainee, or pretrial defendant, etc.; carnal knowledge.

SUMMARY AS PASSED —– Carnal knowledge of a person detained or arrested by a law-enforcement officer or an inmate, parolee, probationer, arrestee, juvenile detainee, or pretrial defendant or posttrial offender; local or state law-enforcement officer; penalty. Adds law-enforcement officers to those persons who are guilty of a Class 6 felony if they are in a position of authority over and carnally know without force, threat, or intimidation a person detained or arrested by a law-enforcement officer or an inmate, parolee, probationer, juvenile detainee, or pretrial defendant or posttrial offender, including those in the custody of a private, local, or state law-enforcement agency. In addition, the bill adds a person in the custody of a law-enforcement officer to the list of those persons for whom it is unlawful for a person in such authority to commit the offense of carnal knowledge.

HB 5055 Law-enforcement civilian oversight bodies; localities may establish, duties, effective date.

SUMMARY AS PASSED —– Law-enforcement civilian oversight bodies. Authorizes a locality to establish a law-enforcement civilian oversight body that may (i) receive, investigate, and issue findings on complaints from civilians regarding conduct of law-enforcement officers and civilian employees; (ii) investigate and issue findings on incidents, including the use of force by a law-enforcement officer, death or serious injury to any person held in custody, serious abuse of authority or misconduct, allegedly discriminatory stops, and other incidents regarding the conduct of law-enforcement officers or civilian employees; (iii) make binding disciplinary determinations in cases that involve serious breaches of departmental and professional standards; (iv) investigate policies, practices, and procedures of law-enforcement agencies and make recommendations regarding changes to such policies, practices, and procedures; (v) review all investigations conducted internally by law-enforcement agencies and issue findings regarding the accuracy, completeness, and impartiality of such investigations and the sufficiency of any discipline resulting from such investigations; (vi) request reports of the annual expenditures of law-enforcement agencies and make budgetary recommendations; (vii) make public reports on the activities of the law-enforcement civilian oversight body; and (viii) undertake any other duties as reasonably necessary for the law-enforcement civilian oversight body to effectuate its lawful purpose to effectively oversee the law-enforcement agencies as authorized by the locality. Such oversight bodies are not authorized to oversee sheriff’s departments. The bill provides that a law-enforcement officer who is subject to a binding disciplinary determination may file a grievance requesting a final hearing pursuant to the locality’s local grievance procedures. The bill also provides that a retired law-enforcement officer may serve on such law-enforcement civilian oversight body as an advisory, nonvoting ex officio member. The bill has a delayed effective date of July 1, 2021, and is identical to SB 5035.

SB 5014 Law-enforcement officers; officers to complete crisis intervention training.

SUMMARY AS PASSSED —– Minimum training standards for law-enforcement officers; crisis intervention team training. Requires all law-enforcement officers involved in a crisis intervention team program to complete a comprehensive advanced training course developed by the Department of Criminal Justice Services. The bill also directs the Department to develop modules of principles-based training to be included as part of compulsory minimum training standards subsequent to employment as a law-enforcement officer and as part of basic training and the recertification of law-enforcement officers. The bill also requires the Department to establish training standards for law-enforcement personnel concerning sensitivity and awareness of systemic and individual racism and the potential for bias-based profiling. This bill incorporates SB 5113.

SB 5018 Terminally ill prisoners; conditional release.

SUMMARY AS PASSED —– Conditional release of terminally ill prisoners. Provides that any person serving a sentence imposed upon a conviction for a felony offense other than those enumerated in the bill as exceptions to eligibility and who is terminally ill as defined in the bill is eligible for consideration by the Parole Board for conditional release.

HB 5148 Earned sentence credits; 4.5 credits may be earned for each 30 days served on certain sentences.

SUMMARY AS PASSED —– Department of Corrections; earned sentence credits. Establishes a four-level classification system for the awarding and calculation of earned sentence credits. The bill also specifies certain crimes that are subject to the maximum 4.5 earned sentence credits for each 30 days served that is permitted under current law. The bill provides that the Department of Corrections shall convene in due course a work group to study the impact of the sentence credit amendments set forth in the act. The bill directs the work group to report to the Governor and the General Assembly by July 1, 2021, the membership of the work group and the work group’s plan for conducting such study, including any data and information upon which the work group will rely in conducting such study, and to report its finding and conclusions to the Governor and the General Assembly by December 1, 2022. The remainder of the bill has a delayed effective date of January 1, 2022, and requires the calculation of earned sentence credits to apply retroactively to the entire sentence of any inmate who is confined in a state correctional facility and participating in the earned sentence credit system on January 1, 2022. As introduced, this bill was a recommendation of the Virginia State Crime Commission.

SB 5034 Terminally ill prisoners; conditional release, sentence credits.

SUMMARY AS PASSED —– Release of prisoners. Provides that any person serving a sentence imposed upon a conviction for a felony offense other than those enumerated in the bill as exceptions to eligibility and who is terminally ill as defined in the bill is eligible for consideration by the Parole Board for conditional release.

The bill also establishes a four-level classification system for the awarding and calculation of earned sentence credits. The bill specifies certain crimes that are subject to the maximum 4.5 earned sentence credits for each 30 days served that is permitted under current law. The bill provides that the Department of Corrections shall convene in due course a work group to study the impact of the sentence credit amendments set forth in the bill. The bill directs the work group to report to the Governor and the General Assembly by July 1, 2021, the membership of the work group and the work group’s plan for conducting such study, including any data and information upon which the work group will rely in conducting such study, and to report its finding and conclusions to the Governor and the General Assembly by December 1, 2022. The remainder of the bill has a delayed effective date of January 1, 2022, and requires the calculation of earned sentence credits to apply retroactively to the entire sentence of any inmate who is confined in a state correctional facility and participating in the earned sentence credit system on January 1, 2022.

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