Earlier in the year, when Virginia legislators modified probation laws, their goal was simple: to stop individuals from being sent back to prison for minor infractions like failing a drug test or missing an appointment.  

On paper, it was a great idea. Still, three months after implementation, officials in the justice system claim the restrictions have created a ton of confusion, inconsistencies in rulings, and in some instances, deliberate pushback from prosecutors and judges. 

According to Jody Fridley, the Virginia Sentencing Commission deputy director, they’ve been working for twenty years to reduce disparity in criminal sentencing. Unfortunately, the new probation reforms have paved the way for even more inequity. 

New Probation Laws

The new probation laws forbid courts from imprisoning probationers for a first technical offense. It also limits the punishments for the second technical offense to no more than 14 days in prison. After the third offense, judges can pass longer sentences. The new Virginia probation law also limits felony probation to five years and misdemeanor probation to a year. Democrats championed this change and held a bill signing celebration with Meek Mill, a rapper whose experience with probation aided in passing the new probation law.  

Technical Violations

The time limits are clear, but there’s some ambiguity in what constitutes a technical violation. Fidley cited an incident where a sex offender received a probation violation for trying to contact a minor online to explain the problem. The probation terms included some special provisions that prohibited contacting minors and using social media. Because of this, a probation officer in one jurisdiction determined it was a major violation that warranted a sentence between three and twelve months. 

In a different jurisdiction, a probation officer wrote it up as a technical violation. Since they considered it a failure to follow instructions, it didn’t count as a major violation. As a first offense, no prison time was recommended. 

According to the Members of the sentencing commission, a body responsible for setting punishment guidelines and tracking how well judges follow them, the confusion can be cleared with more guidance. Senator John Edwards went on record saying the disparity cannot be allowed to continue.

Judicial Discretion

Aside from the confusion surrounding technical offenses, other issues might prove difficult to detangle. So far, the strongest pushback to the new legislation has been from James Fisher, a circuit court judge from Loudoun County. He believes the new laws are unconstitutional and infringe on judicial discretion. 

As a circuit court judge, his ruling doesn’t create a precedent and isn’t relevant outside his courtroom. However, he directed local probation departments to continue filing violation reports based on the old guidelines. 

Judge James Fisher continued to say that the punishment issued to a probationer when they violate rules of supervised probation lies within the space of judicial discretion. Legislation cannot micromanage such considerations since they need individualized analysis of circumstances and considerations that are far too many to detail in law. 

Though Judge James Fisher has a reputation for issuing harsh sentences and made headlines for ordering the jailing of an alleged domestic violence victim for contempt.  Many probation officers, prosecutors and judges agree with the issues he points out with the legislation. 

He also pointed out that it’s common in Loudoun and other regions for officers to accrue multiple technical probation violations before returning the defendant to court. In such cases, though they are multiple offenses, they’ll be treated as a first offense. Consequently, the judge won’t issue punishment. 

For instance, an offender who flees from supervision after multiple probation infractions and remains at large for a long time will be handled as a first-time offender. On the other hand, an offender returned to court immediately after their first offense and for every other separate violation might receive enforcement penalties.

According to the sentencing commission, some judges are sidestepping to avoid dilemmas down the line by treating technical violations as separate hearings. Because of this, a defendant could rack up three or more offenses in 24 hours.  

Aside from sentencing inequality caused by different approaches, the staff at the sentencing commission are afraid that when probation officers continue returning defendants to court for every technical violation, they may do more harm than good. This is because it will leave them with a long criminal history that they’d not have otherwise. 

Harsher Sentences Due To Probation Reform?

Moreover, the staff is worried that the law is leading some prosecutors and judges towards harsher sentences. Some have gone on record to say they’ll adjust plea agreements because of new limitations of returning defendants to court for the safety of the public. The analogy used to explain their reason is that they get a single bite at the apple, so they cannot afford to risk it. 

On the flip side, the law supporters shared their frustrations with what they term as deliberate efforts to circumvent the law’s intent. According to Del Don Scott, the person who proposed the new probation legislation, sending defendants back to court for separate technical violations was an unintended loophole. This wasn’t the intention, and he hopes they’ll get a chance to clean up the bill’s language soon. 

Judicial Opposition

According to Arlington’s chief public defender and executive director of Justice Forward, Brad Haywood, the fight against the probation legislation shows just how deep the 90-style of being tough on crime is ingrained in the judicial system. 

Brad Haywood, who also aided in authoring the legislation, said that there are some individuals who believe in the reforms and are committed to it. However, some are opposing it from different areas of the judicial system. The opposition is disappointing and highly unprecedented.