Is punching an officer the same as an officer being hit by an onion ring? Today in Virginia, both offenses are a felony that carry a mandatory six months in jail. Such is the logic of mandatory minimum sentences.
This past month, Senate Democrats offered a series of police and criminal justice reform proposals. This included making assault and battery involving a law enforcement officer victim a felony only if the victim experiences a visible injury, while keeping malicious wounding and murder felonies available for more serious injuries. Several conservative commentators have tried to argue this somehow attacks police — they are wrong.
First, here is what our proposal does not do. If an officer is attacked and suffers a serious injury like broken skin, broken bones, internal injuries or a concussion, then that is a felony punishable by five to 30 years in prison and a two-year mandatory minimum sentence. No one has proposed changes to that.
The Virginia State Police’s 2019 Annual Crime Report recorded 1,939 charges involving law enforcement victims. Serious injuries occurred in about 5% of the nearly 2,000 charges where an officer was the victim that year.
However, 70% of officer-victim cases resulted in no injury to the officer and 25% involved minor injuries. That is because 77% of cases involved only a human body part as a “weapon.” These situations are what our proposals are focused upon.
Minor incidents can result in major jail terms. An assault can occur today when a person takes an intentional act with the intent to harm someone, or place him or her in fear of harm — even without touching them.
An assault and battery occurs when an assault is coupled with touching the victim without that person’s consent — no matter how slight the touch. Both are misdemeanors and carry up to 12 months in jail for regular people. But since 1997, if the victim is a law enforcement officer, an assault or an assault and battery is a Class 6 felony that carries a six-month mandatory jail sentence.
Virginians have been charged with these kinds of felonies for officers hit by onion rings or brownies, or water spilling onto shoes. Individuals have been charged for slapping a wrist after waking from Narcan administration during an opiate overdose.
One student was charged for bumping a school resource officer while trying to get to class. People with mental illness or reactive disorders due to autism or “ticks” have faced mandatory incarceration.
These charges often are brought after traffic stops or minor interactions escalate. They result in hiding officer misconduct because citizens charged with felonies and six-month sentences become desperate to compromise and avoid trial. These charges reduce transparency.
President Donald Trump and Congress recently recognized the error of overfelonization and mandatory minimum sentences with the First Step Act of 2018, and no study ever has shown that the United States’ love affair with mandatory minimum sentences has done anything to deter, reduce or prevent crime.
However, mandatory minimum sentences have been very effective at forcing guilty pleas to crimes people did not commit, filling our jails and encouraging people to make up false stories on others during “cooperation” to avoid the minimum sentence. Gov. Ralph Northam has vowed to veto mandatory minimum legislation that reaches his desk.
No one disputes that when law enforcement officers are injured, someone should face a felony charge. But situations involving no contact or even minor touching should not result in a mandatory six months behind bars.
Removing the checks and balances of a judge or jury’s discretion from the sentencing process — without a sentence tailored to the facts of the crime, the victim or the circumstances that put the defendant in a position to be committing the alleged offense — creates bad results. Returning discretion to our system will return transparency and discretion to these situations.
Building trust in law enforcement requires those who are given a license to use force on citizens to exercise that force with maximum meaningful oversight and accountability.
Our proposal will restore transparency of overaggressive policing and increase fairness, while ensuring meaningful consequences for those who harm good officers who are victimized while putting their lives on the line every day protecting us.