Justice Matters with Bryan Porter: General Assembly criminal system changes

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Justice Matters with Bryan Porter: General Assembly criminal system changes
Porter in front of the Alexandria Courthouse. (Photo Credit: Missy Schrott)
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The Virginia General Assembly has been a hectic place during the past 14 months. In that time frame, it has thrice convened for lengthy sessions. During these meetings, the Assembly has enacted a significant number of new reforms to the criminal system. I have previously recounted the changes that arose from both last year’s regular and special sessions; this column will review this year’s just-concluded regular session.

Perhaps the biggest headline from the Assembly is the abolition of the death penalty. On Feb. 22, the abolition bill passed the Senate. While the bill has not been signed by Gov. Ralph Northam (D-VA) as I write, he has indicated he will sign it and therefore make Virginia the 23rd state to end state-sponsored execution. I note that all members of Alexandria’s delegation voted in support of this bill and that I likewise supported its passage.

In another significant change, the Assembly has created a glide path for the legalization of marijuana. Last year, it decriminalized the possession of marijuana; this year it set in motion a process which will render lawful the possession and personal use of small amounts of marijuana.

The new regulation regime will require time to stand up. The initiation of most changes will be delayed until Jan. 1, 2024. This complex piece of legislation must address a slew of regulatory areas such as control and lawful distribution, taxation and zoning of marijuana production and distribution businesses.

The Assembly also acted to significantly increase access to expungement of criminal records. In addition, the House and Senate reached a compromise by which citizens may have their criminal records sealed for certain convictions. While frequently conflated, expungement and sealing of records are not synonymous and instead refer to two related, but entirely different, processes.

Expungement refers to the complete destruction of records related to charges in which the citizen was found not guilty, or in which the charge was dismissed. The expungement process will continue relatively unchanged, except to the extent that the new sealing process described below impacts charges in which a conviction was not entered.

The sealing process generally relates to cases in which the citizen was convicted of an offense, but in which a significant period of time has passed. There is also a provision generally requiring the automatic sealing of dismissed misdemeanor charges. Records relating to convictions for certain offenses, such as petit larceny, trespassing and disorderly conduct, would automatically be sealed from public inspection after seven years if the citizen has not been convicted of any crime, not to include traffic violations.

Additionally, all records related to marijuana convictions obtained when its possession was a criminal offense are effectively sealed immediately. The term “sealing” is defined in the bill as meaning: “restricting access” to records “relating to an arrest, charge, or conviction … unless dissemination is authorized by a court.” If a conviction has been officially sealed, a citizen is allowed to “deny or not disclose to any state or local government agency or to any private employer … that such an arrest, charge, or conviction occurred.”

Persons convicted of other offenses not included in the list of automatically sealed offenses, such as all other misdemeanors and class five and six felonies, would be allowed to petition for a sealing order after the passage of seven years for misdemeanor offenses and 10 years for felony offenses, again assuming the citizen has not been convicted of any crime in the interim. Alexandria Delegate and House Majority Leader Charniele Herring was instrumental in securing this much-needed change to Virginia’s law.

As I have noted in previous columns, I encourage citizens to go online and read the specific texts associated with these bills. I likewise note that the laws discussed above go into effect on July 1. The necessary text may be found at: lis.virginia.gov.

Finally, I recently had the pleasure of being interviewed by Times editor Cody Mello-Klein for his outstanding podcast, “Speak Easy.” My episode should be available to listeners on March 31.

The writer is Commonwealth’s Attorney for Alexandria.

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