Wrapping Up the Special Session on COVID-19, Police Reform

Delegate Alfonso Lopez (D-Arlington) and State Senator Jennifer Boysko (D-Fairfax & Loudoun) reveal the new laws to reform criminal justice and adjust the budget to account for the COVID-19 pandemic. They also provide a sneak peek at Democratic priorities for the 2021 regular session.

Michael Pope
Welcome to Transition Virginia, the podcast that examines the transition of power from Republican to Democrat. My name is Michael Pope.

Thomas Bowman
And I'm Thomas Bowman. Today on the podcast, we'll wrap up Virginia's Special Session on COVID, the cops and Coronavirus edition of the General Assembly. The General Assembly introduced 270 bills and passed 56 of them. We're gonna walk through what happened, what didn't happen, and what happens next.

Michael Pope
And to help us understand all of that, we're joined by a member of the Virginia House of Delegates, and a member of the Virginia State Senate. From the House, we're joined by the Democratic Whip. He represents Northern Virginia localities in Arlington and Fairfax County. This is his third appearance on the podcast, Alfonso Lopez, thanks for joining us.

Alfonso Lopez
Thank you for having me, guys. I really appreciate it.

Thomas Bowman
We're also joined by a senator from the other side of the Capitol. She serves as the Sergeant at Arms for the Senate Democratic Caucus, and her district includes Fairfax and Loudoun County, also in Northern Virginia. Senator Jennifer Boysko, thanks for joining us.

Jennifer Boysko
Thank you so much for having me. I'm really looking forward to our conversation today.

Michael Pope
Before we get into the Special Session, in the intro there, we introduced you, Senator, as the Sergeant at Arms of the Caucus. I'm curious, what exactly...does that mean, you have to beat up on Scott Surovell when he gets too loud and obnoxious?

Jennifer Boysko
Absolutely. I have to keep the order in our Caucus meetings.

Michael Pope
Is that difficult to do?

Jennifer Boysko
Some days it is but you know, I'm a mom. And I've gotten a lot of practice over the years. So I handle it pretty well.

Michael Pope
So this Special Session that Thomas was going through the numbers there, that's 270 bills were introduced, 56 of them passed, and are on their way to the Governor, many of those are duplicates, of course, but still there's like, you know, about four dozen bills or so that we're talking about there. Delegate Lopez, let's start with you. What happened in this Special Session?

Alfonso Lopez
In all, I think 29 pieces of legislation that were part of the Democratic, House Democratic Caucus priorities were passed, by both the House and the Senate. And we advanced a budget that funds our urgent measures that passed in Special Session while also adjusting the diminished revenue forecast caused by COVID-19's recession, and also safeguarding our triple A bond rating. So overall, I mean, we prioritize support for Virginians who have been suffering physically and economically due to COVID-19, and also addressed the inequities in the Commonwealth, especially in the areas of police and criminal justice reform.

Thomas Bowman
So let's back up real quick, what did the General Assembly perceive its mandate to be, and what was the goal? Senator Boysko, I'll throw to you.

Jennifer Boysko
Certainly. So we knew going, you know, out of Session, once we saw that COVID-19 was really impacting our budget, that we were going to have to come back in for a Special Session to address that, to make sure that we were being fiscally responsible, and addressing the urgent needs of our constituents. We also, in June, when the very horrible murder of George Floyd took place, and Breonna Taylor, criminal justice reform became an issue that everybody was faced with and could no longer ignore. And we incorporated that as part of the top priority. And it was amazing because we finally passed all of our criminal justice reform bills on what would have been George Floyd's 47th birthday, which just happened to be a coincidence, but was really powerful to a lot of us.

Michael Pope
I want to talk about something that did not happen, which was legislation on expungements. Now the House passed a version of expungements that was automatic expungements, for lots of misdemeanors, even some felonies. The Senate had a version of that, it was not automatic. It was way more limited to mainly first time offenders. And this went into conference committee, but I don't think has emerged, right? So I think it's just sort of into a black hole. Delegate Lopez what happened with expungement reform and is that going to come back again next year?

Alfonso Lopez
Well, you know, it'll definitely be coming back next year. It's still, actually, in negotiations between Senator Deeds and Majority Leader Herring, who is also the Chair of the Courts of Justice Committee in the House side. So what we have right now is the House Bill included over 100 crimes, and was the result of a study of over five months, it was not a rushed process. The Deeds Bill has four crimes, underage drinking, underage possession of cigarettes and marijuana, and a fake ID. His bill also required a pardon from the Governor before you can petition for expungement. And and here's the deal. We all know that Virginia's governors have a very low rate of pardons. I think Northam had 48, McAuliffe had 189, McDonald had 52, Kaine had 108, Gilmore had nine. Wilder had four. And so there was a very big disconnect between the original House and the original Senate versions of the expungement bill, but I am, I am happy that they're still having a conversation and there still might be an opportunity to do something. If not now, definitely during the General Assembly Session in January.

Michael Pope
Senator Boysko, when we look at expungements, and how the Senate was not willing to go as far as the House was on expungements. When we look at qualified immunity, which passed the House and did not make it through the committee in the Senate, there is this perception that the Senate is sort of dragging along here, and sort of stopping the the progress, from the perspective of the House that they want to make. What's your perspective on the Senate's role in all of these issues?

Jennifer Boysko
Yeah, thank you, Michael. So I serve on the Judiciary Committee, and I was one of the six members of the Criminal Justice Reform Subcommittee at Hawk that was appointed to deal with all these bills over the summer. We spent five months really going deeply into a number of initiatives, any one of them in any other year would have been seen as a major, major victory. And we ended up getting quite a few of them. On the expungement, and on the qualified immunity, there were details. These were very, very complex bills, where we did not have full vetting of all the challenges that were faced in getting a comprehensive agreement on both of those. It is my understanding, and my expectation, that we will be working on those throughout the rest of this calendar year so that we are ready in January to fully vet and and get something passed on both of those initiatives. That's certainly my intention. These are important bills. But considering the load of work that we had on policing reform, on earned sentence credit, on the pre textual, on the jury sentencing, I mean, we got some major, major stuff. And I I feel like it was a huge progress and victory. And I, it's a process though. We're going to continue to work to make sure that we get everything right.

Alfonso Lopez
Yeah. If I can just piggyback on something the Senator said, you know, the amount of incredibly forward looking, positive policing and criminal justice reform legislation passed, and and sent to the Governor is really makes us one of the leaders in the country. I mean, other states have tried to tackle some of these issues and have failed miserably. We have mandating the use of, we're talking about excessive force. We've got more markets alert system. We've got banning such relations with officers and arrestees, we've got decertification of law enforcement officers, who have terminated or resigned for violation of the law, strengthening the citizen review panels, eliminating certain vehicle equipment offenses as pretextual stops, demilitarization of police departments. You know, it just goes on and on. My bill empowering the Attorney General to conduct pattern or practice investigations of police forces, finally, that appear to be violating constitutional rights, including unlawful discrimination, or excessive force. You know, expanding the definition of hate crimes to include false 911 calls, or what reports a law enforcement, prohibiting No knock search warrants, strengthening the assessments and review of prior law enforcement employment records required before hiring law enforcement officers, and then diversifying the Department of Criminal Justice Services Committee on training. Standardizing enhancing trained training by criminal justice academies, establishing required in service training centers for law enforcement officers, increasing earned sentence credits. I mean, these are huge steps forward and and as to allude to something the Senator said earlier, in years past, when the Republicans were in charge of the House and Senate, just one of these bills would have would have been a huge amount of press and and and press conferences and, and branding, and marketing around this amazing step forward. We've passed dozens of them this Session, and I think it's the kind of thing that moves Virginia into a leadership spot for the entire country.

Thomas Bowman
So how would you characterize this Session? Do you believe, Delegate Lopez, the result meets the expectations and the needs of the moment? Where did we meet expectations and needs? And where do we have room to grow?

Alfonso Lopez
Well, there's always ways to be better. I mean, we are always searching for that more perfect union, we're always searching for ways to improve legislation, we're always searching for ways to improve public policy in Virginia. And so, honestly, nothing is ever complete, nothing is ever done, there's always better, more that we can do that we can be doing better. And so yes, we have done a great deal in terms of, of a lot of these criminal justice reform bills, but we can improve them. And this is not something where we can simply snap our fingers and say, "Yes, it's going to be perfect." This is a negotiated process, as well. And so I'm very excited about what we're going to do in the coming Session. And to address civil immunity, to address expungement issues, or possibly even before then. And then also some pieces of other bills that we did pass, that maybe we...they're not as good as they could be. And so we have a lot opportunities ahead of us.

Michael Pope
On the issue of potentially not as good as they could be, one bill that did make it out of the General Assembly, and is now on the Governor's desk, is a bill that was introduced by Senator Boysko, on earned sentence credits. Now, Senator, your original bill had a way for people who are in prisons, to earn increased credits that would allow them to get out earlier. But as the bill worked its way through the process, there was lot's of testimony from people that wanted exemptions for this kind of crime, and exemptions for that kind of crime, and in its final version, ended up sort of applying to people who were guilty of, you know, drugs, or fraud or theft, but not sex offenses, or violent offenses. Talk a little bit about that process. And do you feel like there's room to improve on that, from your perspective, next year?

Jennifer Boysko
Absolutely. I mean, that was it was really an amazing process. And we set up a workgroup with this, because we did, as you mentioned, ended up narrowing it quite a bit and putting a lot of exclusions on, in order to pass it. And that's what sometimes you have to do to to get everybody to vote for it. We have put a workgroup together, that's going to look at the data, so that this is a data driven process, in the future, as we hopefully will come back to this. I definitely intend to come back and continue working on this in the future. I got to know a lot of the families through this process, these past five months, and hearing stories from people's loved ones and from people who are incarcerated themselves. We know that people can do better and can have a second chance. And I think it's important that we get those people, with very measured and thoughtful data driven programs, to do just that. We don't need to be among the highest incarcerated states in the nation.

Michael Pope
Quick follow up question, on that, Senator. So you mentioned that there were lots of exclusions that were added to the bill in order to get it through the process, and then on its way to the Governor's desk. Which of those exemptions do you find might be problematic, and that you want to come back around to next year?

Jennifer Boysko
Yeah. So I mean, there are lots of them. So prostitution is one of them. Things around adults and sex trafficking is one that there are some non violent offenses.

Michael Pope
So let's use prostitution as an example. So if you're currently in prison, and you're serving time, on prostitution, you would not be eligible for this newly created program, where you get expanded sentence credits, and you get out earlier. That program wouldn't apply to you, basically, is that, how that would work? But you feel like that is one of the exclusions that you'd like to come back around to, that and the others that you mentioned that you'd like to come back around to so that they could be part of this program?

Jennifer Boysko
I mean, originally, what I had hoped were things that are crimes against children, especially sex crimes against children, rape, violent murder, obviously, any murder is violent, but the most heinous, you know, the the capital murder class one felonies, the things that a person would be dangerous to be able to get back out. We ended up, because people did not have a comfort level, because, of course, you know, people with victims concerns came into the picture, and we had to make sure that we listened to them, things got tightened up, and I think there were, there were fears of campaign brochures that someone was gonna let someone out who did something terrible. But again, I'm going to go back to that 18 year old kid who does something stupid, who is involved in something that was not the the main perpetrator or something, but who was an innocent bystander, they're still considered in this category. And they didn't intend to, you know, manslaughter is in this. There are lots of categories in this bill that tie people up and do not give them the opportunity. As the law stands right now, any incarcerated person can qualify for 4.5 days per 30 days to get a sentence credit reduced, there is no exception. And so what I found frustrating is now we're picking winners and losers, based on what their sentences are, in a way that wasn't necessarily the best way possible, I think. But again, this is a step in the right direction. It is landmark, we have not seen prison reform in over 25 years. Again, I'm so proud that we were able to get this far. And it is, again, a step in the right direction. We, in Virginia, we do not typically do the whole thing at once, we do step by step by step, which I think is prudent and reasonable. And make sure that we're taking measured, measured actions, so that we're being responsible to the citizens and the residents of Virginia.

Michael Pope
One thing that we've seen emerge as a perception of how the General Assembly works, is that the House is bold and progressive, and the Senate is sort of dragging its heels, and pushing back on things. We saw that, you know, perhaps with expungement, that's somewhat at a stalemate right now, we're going to talk about that later, I suppose. We saw that with qualified immunity passed the House, it did not get through the Senate. But on the other side of that, though, is this issue of assault on police, and getting rid of the mandatory minimum, which has been used in cases where people like drop a cup of water on the shoes of someone, or famously, in the case where an onion ring was thrown at an officer. Now, this is a bill that passed the Senate, but it did not get through the House. Delegate Lopez, what happened there?

Alfonso Lopez
Um, all I can say is that, you know, not unlike what Senator Boysko was talking about before, about, you know, the difficulty of getting things through the Senate, and getting people to agree, we had a very significant, you know, I hate this word, but robust conversations about how far the Caucus was willing to go. And although I supported Surovell's bill on the House side, and and was prepared to vote for it, we did not have enough, I believe, to get it across the finish line.

Thomas Bowman
So Delegate Lopez, can you take us in to one of these negotiations on an issue that came up? Who are the players and their positions? And how did we get to that final product? And maybe, can you explain it in a way that takes us into our next segment, where we talk about what happens next with Governor's bills and recommendations?

Alfonso Lopez
You know, what's interesting when people talk about say, the Joe Morrissey bill, regarding jury sentencing, that conversation was not about the policy, the House Democratic Caucus was fully invested in the policy. The problem was that there are only two states in the entire country, Virginia and Kentucky, that still did it this antiquated way. And I was incredibly proud of these robust conversations that the Caucus had, where we got past the issue of whether or not this was a cost issue, and the speculative nature of like, because we because it's impossible to quantify because of the nature of prosecutorial discretion, how much of this is going to cost? And so, you know, it's not a cost issue. And I said that in Caucus a few times. The argument that the bill is going to lead to an increase in number of jury trials, is completely speculative. What we're talking about here, is fundamental justice. And if 48 other states have figured this out, we need to as well. And what I was very proud of is how everyone came together, had these conversations on the House side, as Senator Boysko said, in real time, at the end of the Session, and I think came down on the side of the angels, came down on some fundamental justice.

Thomas Bowman
Delegate Lopez, Senator Boysko, we're gonna take a quick break. And when we come back, we're going to discuss what happens next with the bills before the Governor.

Michael Pope
And we're back on Transition Virginia. We're joined by Delegate Alfonso Lopez of Arlington, and Senator Jennifer Boysko of Herndon. We want to look ahead now to what happens next with Special Session. Now, you guys have sent these 50 something bills over to the Governor, he gets to amend them and send them back to you, right? What do we expect from the Governor? What would you two like to see from the Governor, in terms of amendments, potential amendments? Delegate Lopez, we'll start with you.

Alfonso Lopez
Sure. Well, the Governor has seven days after the bill is communicated to him, as long as we haven't adjourned Scene A, VA and so we should be getting his amendments and line item vetoes rather rather soon. Now, do I expect tweaks? Do I expect there to be some changes? You know, yes, I think there is some road funding that snuck in that might be addressed by the Governor. And I can't get into specifics, but to reallocate some road funding, instead of road it could go to things like social services, the Affordable Housing Trust Fund, it could go to education funding, it could go to broadband, expanding broadband, and efforts that were unallotted because of the downturn.

Michael Pope
Okay, so Delegate Lopez wants the Governor to potentially reallocate some money that had gone to road funding, to other things. Senator Boysko, what kind of tweaks would you like to see from the Governor?

Jennifer Boysko
Yeah, you know, more money for unemployment, I think that's probably my top priority and would like to see, is make sure that we are really shoring that account up, and getting it from the federal government, because that's where it should be coming from, from the Cares Act money. And our social services groups, you know, making sure that they have the resources with the Cares money, to make sure that they've got what they need at our local levels, because they're the ones who are really on the front lines, making those day to day decisions to help residents. Those are probably my two concerns. And then of course, if we have more money, to come back and help deploy more broadband.

Thomas Bowman
So it sounds like COVID created a lot of expensive, competing priorities. And the revenue deficits or shortfalls, are really the fundamental question, is how do we pay for all the things that we absolutely have to pay for, right? So did anybody explore innovative ways to raise revenue, maybe increasing a VAT tax or, or anything to relieve the pressure on the budget, and the more pressure that will come when the stock market falls in the future?

Alfonso Lopez
I think that's part of our conversation for the regular Session. Um, there are several folks, both senators and House members talking about this. And but you know, everything's on the table. Would I say that this is definitely going to happen? No. Do I think there, we need to preserve and protect middle income and poorer folks when it comes to taxes? Yes. Do I think that we need to right size how we do some of the corporate taxes in the Commonwealth? Yes. But this is for future discussions. I think we have more time going into the regular Session.

Michael Pope
I want to return to the issue of expungements. I was speaking to an advocate who was thinking this issue was kind of over with, and that it had gone into a conference committee, and the advocate I was speaking to, didn't expect it to emerge from the conference committee. He thought this issue was sort of done for the Special Session, and was already sort of preparing for the next General Assembly Session. I got the sense though, that Delegate Lopez, you think it might not be over with yet? Do you think that we can see progress with Charniele Herring and Creigh Deeds making some sort of compromise on expungements?

Alfonso Lopez
I know that they are both speaking with each other. And I know when you're talking about Creigh Deeds and Charniele Herring, that they are two of our best, and that they can, if anybody can accomplish something and get stuff moving forward, it's those two.

Michael Pope
Well, Senator Boysko, what are your thoughts there? The House had a very expansive version that allowed expungement for lots of misdemeanors, even some felonies. It was automatic, then you had this tension with the Senate that didn't necessarily like the automatic approach, and wanted it much more limited, in terms of what kind of crimes might be wrapped up in expungements. What's your view of expungement and do you think that there might be some sort of compromise during Special Session?

Jennifer Boysko
I think there definitely is, in fact, so my understanding is that, on the last day that we were, you know, on Friday, there were ongoing conversations all afternoon and into the evening. And it just was a time, we ran out of time. But we did not adjourn, and we do have the opportunity to go back in to finish this up, which is my understanding of what we're going to do. Everybody in the House and the Senate wants to see a deal on this. We all understand that this is an important piece of our criminal justice reform package. And I think we're probably going to see some sort of an effort where the House and Senate Judiciary Committee members get together to work on this through the rest of the year, to get it into the posture that we will all feel comfortable. Again, sometimes we have to compromise to not get everything that we want all at once, to get something moving forward. And I assume that's going to be one of those things. This is a very complex issue. But it's an important one. And I, you know, I believe that we will find common ground to get to get it moving in the right direction. Can I go back to the, to the funding issue about the the budget just a quick second? We did have a budget item that talked about tobacco products, and putting up tax on heated tobacco products, $2.25 per stick, beginning January 2021, as part of our revenue generation.

Alfonso Lopez
That would be amazing.

Thomas Bowman
All right. Well, let's take a quick break. And we've already kind of teased the third segment. When we come back, we're going to talk about the issues we might see emerging for the 2021 Session.

Michael Pope
And we're back on Transition Virginia, we want to get off the crystal ball and here into the future, and get a sense of the issues that might emerge for the 2021 Session. Now hold on to your hats everyone. The 2021 Session is 12 weeks away. Can we believe it? 12 weeks away. Now this is the time of year, actually, when lawmakers, and advocates, and journalists are preparing for the upcoming General Assembly Session, and trying to get a sense of what issues are going to emerge and what topics are going to be in the bills. Senator Boysko, let's start with you. What do you think the big issues that we're going to see in 2021 are?

Jennifer Boysko
You know, I, the things that I care a whole lot about are dealing with families and economic opportunity, I think equal pay for equal work. I've been carrying that bill for a number of years. And I plan to reintroduce it. We still are not on parity, even though in the federal law it says that equal pay should be the law of the land, it's still not. And there are some some things that we can do around that, I think paid family medical leave is another issue that certainly has shown itself to be a necessity, we shouldn't have to make a decision between keeping our jobs and taking care of a loved one. I'll be carrying that again, for the third time. And I expect that we will pick up the criminal justice issues that we've already discussed, around expungement and qualified immunity. My hope is that we do not all have 55 bills each, but really focus in on a few really important things to address this coming year.

Alfonso Lopez
Just piggybacking on...those are, you know, definitely things I'm hearing about and would heartily agree with. The other things we're hearing about are because of you know, typically the Caboose bill which is the odd year budget, is sort of a less fraught kind of discussion, I think because of the nature of COVID-19, because of the shortfall, and because of the instability in the economy, that you will see a lot of time go into the budget and the Caboose bill, this coming regular session. I also know that the environmental community in the Rural Energy community, is doing a lot of work on clean vehicles, electric vehicles, and making that a priority this coming General Assembly Session. And that as well as what Jennifer mentioned about criminal justice reform bills. And then also I think that there's still much more we could be doing in terms of of cleaning up some of the immigration bills that we're working on. Jennifer and I worked very closely on things like the the DREAM Act in Virginia for in state tuition, for undocumented and DACA students. The idea is that I think some, if it's possible, that we can get some extra coverage in that for some students who fall into some gaps, in terms of their immigration status, like asylum seekers, and so on so forth. And then also funding to advertise that the in state tuition opportunities are available to students through school systems and also community college, and public colleges, and universities.

Jennifer Boysko
I think it's important to highlight some of the great stuff that we did this past General Assembly Session. I mean, the DREAM Act, which we had been working on for years, expanding who can have a driver's license in Virginia, we passed the ERA, we, you know, increased minimum wage, collective bargaining, we passed landmark environmental legislation, we repealed the Trap laws on abortion providers. We we did some really big, heavy lifts last year that I'm so proud of, and so pleased that, you know, I was able to have an opportunity to be a part of those. And I know that the Democrats in the House and the Senate, really used, we used our time to really make meaningful change. And, and I think that's something that we have to continue to celebrate, and to continue to talk about, because this was a landmark 2020 in Virginia. We listened to the people and and elections really do matter.

Alfonso Lopez
Yeah, it was an historic Session. But there's so much more that we do need to be doing. And so I think you'll see in each of those areas, that there are specific things that we need to follow up on, you know, there's still conversations that we have, in terms of labor, even though we did so much in terms of addressing the labor community. But in terms of us being a Right to Work state, what that means, how does that evolve? How does that change?

Michael Pope
Well, Delegate Lopez, since you brought up Virginia's Right to Work Law, I know that there's lots of people in the labor community that would like to see that overturned, can we expect some conversation in 2021, about getting rid of Virginia's Right to Work Law?

Alfonso Lopez
I think what's going to happen is that, just like the House Democratic Caucus has had these incredibly deep and nuanced conversations about public policy for this Special Session, that you'll see us be having the same kind of conversations going forward. And I can't give you any detail beyond that right now but that's where we stand.

Michael Pope
Now, when both of you are outlining what we can expect for 2021, one word that I did not hear anybody mention, is the word, 'parole.' Now Virginia in the 1990s, famously, got rid of its parole system, and we've got the Truth in Sentencing Law. Can we expect any conversation on parole reform? Senator Boysko, I'll start with you.

Jennifer Boysko
Yeah, I think we definitely will see some action. I think that is another one of the really complex and in depth studies needed to make sure that we are looking at all aspects of it. I don't necessarily expect that we're going to see a bill on it. But I do believe that there's going to be an in depth work on it. And so I guess we'll have to tune in to see to see where we are in January.

Michael Pope
Delegate Lopez, would you like to see Virginia reinstitute a system of parole?

Alfonso Lopez
Yes.

Michael Pope
Can we expect that conversation in 2021?

Alfonso Lopez
It's not my call, it's going to be a call, call the Caucus and so leadership will reach work with the Caucus on getting in the weeds and whether and where the Caucus is and where we feel we should be moving as a group.

Thomas Bowman
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