RICHMOND, Va. (WDVM) — In Virginia, any assault on law enforcement is considered a felony with a mandatory minimum jail sentence. This week, the Virginia Senate approved a bill that would change that.
Senator Scott Surovell (D-Fairfax)’s bill would remove the mandatory minimum six-month jail sentence for assaulting a police officer. A judge or jury may consider reducing the charge from a felony to a misdemeanor if the person has a disability.
Surovell drafted the bill when talks of police reform started following the death of George Flloyd. He’s been practicing criminal law for about 24 years in the state. “People believe this particular mandatory minimum statute is used inappropriately very frequently and we need to come up with some safeguards to make sure it’s used in appropriate circumstances,” he said.
Surovell says he has had to defend about four people against this statute in his career. “Every time I’ve seen it charged it seems like the six month mandatory minimum is overkill for the type of conduct that’s involved.” In Virginia, a concussion, a hit, or even breaking of the skin may be considered “malicious wounding.” In many cases, Surovell says the felony charges are a result of minor offenses. Someone who has overdosed may wake up disoriented and hit the EMT who’s administered Narcan to revive them, for example.
Until 1997, law enforcement officers, firefighters, magistrates and judges were “treated just like everyone else,” Surovell said. That year, the state passed a bill that added a 30 day mandatory minimum sentence for someone charged with assault and battery that occurred because the victim was a law enforcement officer. (The mandatory minimum already existed for crimes that occurred because of the victim’s race, religion, sex, or national origin.)
“Assault and battery on a law enforcement officer is the only statute on the books where the same person is the victim, the investigating officer, the lead witness, and the one who makes the charging decision,” Surovell said. “There’s no other situation or criminal code where that’s the case and so the officer who’s the victim here is sort of a built in conflict of interest. We don’t usually ask the victim to decide what the charge should be.”
The bill requires an independent law enforcement officer to investigate and for a commonwealth’s attorney to sign off on the charges.
Now that the bill has passed in the Senate, it heads to the House of Delegates for consideration.
Nationally, there’s been bipartisan support to eliminate mandatory minimum sentences. In late 2018, the House and Senate passed the First Step Act, signed by President Donald Trump, to shorten such sentences for drug offenses.
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