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Claire Guthrie Gastañaga column: These 'criminal justice' proposals can't truly be called 'reforms'

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Lawmakers, opinion leaders, and some in the media have characterized several proposals making their way through the Virginia legislature this year as welcome “criminal justice reform.” They are anything but.

First, there’s the proposal to make teen sexting a criminal misdemeanor (SB 607). Right now, some say, local prosecutors have no choice but to charge a teen who sends a sexually revealing selfie to a friend with a felony: possession and dissemination of child pornography.

The bill’s advocates say it would be a good idea if these teens could be charged with a misdemeanor instead. The truth is prosecutors already have absolute discretion not to charge a teen sexter with a felony or any crime at all. They can recognize, as most parents do, that stupid teen behavior should be dealt with at home and in schools, not in jails. Bottom line, teen sexting (which studies suggest is something up to 40 percent of teens do) shouldn’t be a crime at all. If SB 607 is approved, however, prosecutors will be encouraged to charge teens with a crime because of the availability of a lesser charge. This may seem harmless against the specter of slapping life-altering felonies on teens, but the reality is — misdemeanor or felony — introducing a teen to the criminal justice system is never a good thing.


And then there’s the so-called marijuana “decriminalization” or expungement bill passed overwhelmingly by the Senate (SB 954). The bill doesn’t decriminalize marijuana possession, and it doesn’t really allow a record to be expunged. Marijuana possession would still be crime subject to a $500 criminal fine although not subject to jail time. Those convicted can still have the charge deferred if they agree to conditions that include drug testing and treatment for which they have to foot the bill. What’s new is that, for another fee of $300, first-time offenders would be allowed to ask for that conviction to be stricken from their record. Except it isn’t really stricken, it’s just entered in a new database that can be called up and the charge used against them in later criminal proceedings or in the “administration of criminal justice.”

As long as it is a crime to possess marijuana, people will be arrested and charged, incurring the court costs, fines, and fees. Enforcement of outdated, racially targeted, ineffective, expensive marijuana laws needlessly exposes thousands of people to the legal system, and costs all of us taxpayers tens of millions of dollars each year. Only by making simple possession of marijuana legal can Virginia put an end to disparate enforcement against people of color and reduce the costs imposed on all of us.


Finally, there’s the so-called bipartisan compromise on raising the felony larceny threshold.

The felony threshold is the price point at which someone who steals is charged with a felony instead of a misdemeanor. Right now, that threshold (set in 1980) is $200, the lowest in the country. For comparison, the thresholds in Maryland, Washington, D.C., and North Carolina are $1,000. If Virginia’s threshold was just adjusted for inflation it would be nearly $600.

This session, with momentum on the issue gaining, more bills than you could count on both hands were introduced to increase the threshold, with new levels proposed between $500 and $1,500.

Seeing the writing on the wall, Republican House Speaker Kirk Cox and Democratic Gov. Ralph Northam came to an agreement. The House Republicans would support an increase to just $500 if the governor would agree to an entirely unrelated demand that Virginia make payment of restitution a term of probation and nonpayment the possible basis for modification of the terms of that probation or for a contempt charge carrying up to 60 days in jail.

What makes this a bad deal? Is it that the proposed system would impose additional scrutiny and possible jail time on those who simply cannot pay? Is it that there is nothing stopping the collection of restitution now through ordinary civil process? Is it that connecting restitution to probation and turning probation officers whose job is to help keep us safe into debt collectors is a really dumb idea? Is it that this simply is too high a price to pay in exchange for a paltry increase in the felony larceny threshold that doesn’t even keep pace with inflation?

These so-called “criminal justice reform” proposals are regressive and cannot fairly be called “reforms.” All raise serious racial justice and women’s rights issues, given the disproportionate application of the criminal law. All create an appearance of progress where none actually exists.

Claire Guthrie Gastañaga is the executive director of ACLU of Virginia. Contact her at


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