Category Archives: Courts and law

A Measured Approach to Restoring Felons’ Civil Rights

by James A. Bacon


Del. Gregg Habeeb

Virginia Republicans have excoriated Governor Terry McAuliffe for endeavoring to issue a blanket restoration of civil rights to ex-felons. So, what’s their alternative?

First and most important, Republicans are submitting their proposals as bills that can be reviewed, debated, and amended. The process is transparent, and the public will have a chance to weigh in.

Second, a legislative package announced by Del. Greg Habeeb, R-Salem sets different standards for violent and non-violent offenders. Explains Habeeb in a press release (no link):

The constitutional amendment would allow non-violent offenders, as defined by the General Assembly, to automatically receive their political rights after they have completed their sentence, including all supervised or unsupervised probation, and paid all fines, fees, court costs, and restitution. Violent offenders would be allowed to apply to the governor two years after they have completed their sentence and any probation. The governor would be allowed to restore rights on an individual basis after they have paid their fines, fees, court costs, and restitution.

Everyone deserves an opportunity at redemption, but the nature and severity of the crimes should be taken into consideration and a second chance should only come after they have completed their entire sentence, which includes paying their debts to the justice system and to victims.

The package, which is co-sponsored by De. John O’Bannon, R-Henrico, and Peter Farrell, R-Henrico, also would restore the right to own a firearm to non-violent offenders.

There’s a lot to debate here, but I’d wager this package comes closer than a blanket restoration of rights to reflecting the sentiments of most Virginians. But we really won’t know for sure until we subject the proposal to the legislative process. It’s called democracy. Some people still believe in the concept.

Virginia Court Fines in 2015: $429 Million

Source: FY 2015 Fines and Fees Report

Source: FY 2015 Fines and Fees Report

by James A. Bacon

The Legal Aid Justice Center contends that Virginia courts are perpetuating a cycle of poverty by fining people, charging them court costs, and suspending their driver’s licenses. When people lose their licenses, they find it harder to get to work. Many lose their jobs, making it impossible to pay the fines. Unpaid penalties accumulate, which prompts more sanctions by the courts. That pitiable hard-luck cases do occur is undeniable. The question is how widespread the problem is. Are stories like those enumerated in the Justice Center’s class action lawsuit anecdotal, or is the problem systemic?

We know the problem is widespread enough that Richmonder O. Randolph Rollins felt moved to form Drive to Work,  a not-for-profit organization dedicated to help poor and working class citizens work their way out of the court debt-suspended license trap. According to a story I posted last year, the group had more than 600 clients.

Another way to get a handle on the scope of the vicious cycle is to peruse the 2015 Fines and Fees Report, which tallies assessments and collections by court clerks and commonwealth attorneys in Virginia. Last year, court clerks assessed $429 million and collected $251 million in fines and fees. (The report also notes that commonwealth attorneys, who take on delinquent assessments forwarded to them by the courts, collected another $29 million.)

For whatever reason, assessments have been heading steadily higher since 2013 — until last year, when they dropped sharply. Collections also headed higher through 2011, and then began declining. The report offers no explanation for the fall-off in assessments and collections.

Complicating the picture is the fact that practices differ from locality to locality, which means that the impact on local populations vary as well.

To get a sense of that variance, I tallied net collections by general district courts for Fiscal Year 2015. I focused on  general district courts because they account for 62% of all assessments and 75% of all court collections, way more than the circuit courts and juvenile and domestic relations courts (although sometimes the numbers for general district and juvenile/domestic courts are combined for reporting purposes, as noted by asterisk in the table below). It’s no surprise that jurisdictions with large populations see higher levels of fines and fees. To adjust for population size, I calculated fines and fees per capita, using 2015 population estimates.

The variation between localities is striking. In Craig County, collections of fines and fees averaged a mere $11.27 per capita, the lowest rate in the state last year. By contrast, Greensville County/Emporia logged an extraordinary $290 in fines and fees per resident. The mean level (half of localities above, half below) of collections was about $25 per capita.

There may be legitimate reasons for the wide variation. Perhaps the population of some localities is more prone than others to petty crime, traffic offenses, chaotic family lives and/or contempt toward the courts, characteristics that judges tend to punish with fines. But it’s also possible that some court systems view the assessment of fines and fees as a revenue-raising tool, engaging in practices that could be construed as preying upon the poor. I would conjecture that this might be the case among the eight localities where fees-and-fine collections exceed $100 per capita. While this analysis is too quick-and-dirty to prove the point, it does suggest the need for closer investigation.

Data source: 2015 Fines and Fees Report

Data source: 2015 Fines and Fees Report

To view the average fee-and-fine collections for all Virginia localities, click here.

For what it’s worth, the list of top fine collectors is dominated by rural counties, mostly in Southside and Southwestern Virginia. Is it pure coincidence that Greensville County and Emporia are located on Interstate 95? Are local courts and law enforcement targeting out-of-staters for traffic enforcement? Or are they coming down hard on the local population?

The General Assembly’s primary concern is improving the efficiency of collections, as witnessed by studies on the subject and the annual report on fines and fees. As I have noted elsewhere, courts need the ability to impose fines and penalties as a sanction for certain kinds of offenses. Likewise, it is reasonable to ask guilty parties to pay court costs. But courts must be impartial and even-handed administrators of justice, not revenue-raising arms of the state.

FOIA Case Against UVa Tightens

uva_fog_smallDiscussion of a controversial $2.3 billion Strategic Investment Fund in closed session during a University Virginia Board of Visitor’s meeting appears to be a violation of the Freedom of Information Act (FOIA) — assuming events unfolded as alleged in a letter by an attorney representing former Rector Helen Dragas, concluded Maria J.K. Everett, executive director of the Virginia Freedom of Information Advisory Council in a staff advisory opinion released today.

Virginia Beach attorney Kevin E. Martingayle asked for the opinion in a letter describing Dragas’s version of events at the board meeting, her last before being rotated off the board. In that meeting, she dissented from a vote to certify that the closed session had been held in compliance with the FOIA.

Wrote Everett:

The answer to your question is therefore “yes,” it would be a violation to hold a closed meeting to discuss a fund when the motion to convene the closed meeting was for purposes of discussion of personnel, legal matters and litigation.

The open-meeting exemptions allowed for “personnel” and “legal matters” do not cover “general policy or other matters that may eventually have legal consequences,” Everett wrote.

However, the law does not set forth any remedial action to be taken by the public body, in this case the UVa Board of Visitors. The statutory remedy for a FOIA violation, Everett wrote, is “a petition for mandamus or injunction supported by an affidavit showing good cause.”

While University of Virginia officials have stoutly defended both the justification for the $2.3 billion fund and the manner in which it was approved by the board, they have met Dragas’s FOIA charge with silence.


Virginia’s New Debtor’s Prison

speeding_ticketby James A. Bacon

Damian Stinnie, a 24-year-old African American living in Charlottesville, grew up in the foster care system in Virginia but managed to graduate from high school with a 3.9 GPA. Living with his twin since aging out of foster care, he has worked nearly full-time as a sales clerk at Walmart and, after losing that job, at Abercrombie & Fitch, earning minimum wage, or about $300 per week.

In 2013, Stinnie was convicted of four traffic citations, resulting in fines and charges of $1,002. When he was unable to pay, his driver’s license was suspended, and another $501 in costs imposed. Not knowing that his license was suspended, he continued driving. Stopped again, he was cited for driving without a license. Later that year, he was hospitalized for lymphoma. Unable to attend the court hearing, he was found guilty in absentia of driving without a license and ordered to pay another $117 in court costs and a $150 fine. And the story of woe, cited in a class-action lawsuit filed by the Legal Aid Justice Center, just gets worse. Read it and weep.

An estimated 940,000 Virginians, disproportionately minorities, have a suspended license for nonpayment of court costs and fines. Not every case may be as severe as Stinnie’s, but thousands are trapped in a downward spiral. Denied a license, they find it difficult to find and maintain a job. If they drive illegally, they rack up even more court costs and fines.

“Driver’s license suspension is Virginia’s form of a debtors’ prison,” Angela Ciolfi, a senior attorney at the Legal Aid Justice Center, is quoted as saying in the Reason Foundation’s Hit & Run blog. “Many areas of the state provide no reliable public transportation, effectively leaving people confined to their homes or forcing them to risk jail time by driving on suspended licenses.”

Last month the Legal Aid Justice Center filed a lawsuit challenging Virginia’s policy of suspending drivers licenses indefinitely for unpaid court debts. States the lawsuit:

Hundreds of thousands of people have lost their licenses simply because they are too poor to pay, effectively depriving them of reliable, lawful transportation necessary to get to and from work, take children to school, keep medical appointments, care for ill or disabled family members, or, paradoxically, to meet their financial obligations to the courts. …

In order to fund its basic operations, the Commonwealth has steadily increased the amounts that may be taxes as costs against convicted criminal and traffic defendants and tacked on various additional fees.

Assessments against criminal and traffic court defendants have risen from $281.5 million in fiscal year 1998 to $618.8 million in 2014.

Bacon’s bottom line: Clearly, the system has broken down. Thousands of Virginians are caught in a vicious cycle of indebtedness to the courts. The system needs to be reformed.

But how do we reform it? That gets tricky. The unfortunate Mr. Stimmie did have a bad habit of piling up traffic tickets. Do we abandon the practice of fining people who violate traffic laws? Do we scale the size of the fines according to peoples’ incomes, as they I believe they do in some Scandinavian countries? Do we stop requiring people to pay court costs? If we do so, who does pay — the general public? Do lawbreakers get off scot free and law-abiding citizens pick up the tab?

Whatever the answer — and there are no easy ones — we need to do something. Particularly heinous, insofar as it does occur, is the practice of jacking up fines and penalties as a substitute for taxes. If there is a social justice cause that could unite liberals, libertarians and perhaps even conservatives, this would be it.

Update: Correction made to Damian Stimmie’s pay at Abercrombie & Fitch.

Another Proud Moment in Virginia Government

Where do they find these guys?

Mayor Richard Silverthorne. Where do they find these guys?

From NBC News:

The mayor of Fairfax, Virginia, has resigned following his arrest last week for allegedly trying to exchange methamphetamine to undercover detectives in exchange for sex, city officials said Monday.

Mayor Richard “Scott” Silverthorne … 50, was arrested and charged with felony distribution of methamphetamine and misdemeanor possession of drug paraphernalia after a sting operation that had been underway since July led an undercover detective to the mayor, who provided detectives with methamphetamine.

The detectives had contacted Silverthorne through a website, where he promised them a “group sexual encounter” with men in exchange for the drugs, according to the Fairfax City Police Department.

Which Is More Fundamental: the Restoration of Felons’ Rights or the Constitutional Separation of Powers?

mcauliffeby James A. Bacon

Imbued with a sense of righteousness over the loss of voting rights for convicted felons, Governor Terry McAuliffe is unrepentant about his decision to restore those rights to more than 200,000 ex-felons by executive decree.

In a statement released Friday, McAuliffe decried a Virginia Supreme Court decision ruling that blocked his diktat and excoriated Virginia Republicans for wanting “to deny more than 200,000 of their own citizens the right to vote.” Said he: “I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored.”

The statement suggested a total blindness of the difference between two things: (a) a worthy policy, and (b) the means by which that worthy policy is to be achieved.

I suspect that most Virginians would agree with McAuliffe’s goal of restoring voting rights to non-violent ex-convicts who have served their terms, although victims of violent crimes might object to the idea that the felons have “paid their debt to society.” Reasonable people can disagree over whether murderers and rapists, as opposed to shop lifters and marijuana smokers, should have their rights restored. Also, as we have seen from the clumsy roll-out of the voting rights restoration, there are numerous questions about how that process should be executed.

In a democratic republic, sorting through these issues is not the governor’s job. It is the legislature’s job. Republicans who sued to block McAuliffe’s move were doing so not to obstruct the struggle for civil and human rights but to uphold the constitutional principle of separation of powers.

“Forty states give citizens who have made mistakes and paid their debt to society a straightforward process for restoring voting rights,” said McAuliffe in his statement. Very impressive. I would suggest that he investigate how those 40 states did so. I’ll wager that the vast majority, if not all, did so by enacting a law.

McAuliffe says he will expedite the process of restoring rights on an individual basis, as provided for under the Virginia Constitution, to the 13,000 felons who tried to register. That’s fine. He is empowered to do that. But if he wants to restore voting rights to all the rest, he’ll have to go about it the old-fashioned way: taking his case to the General Assembly and getting his proposal enacted into law. If the General Assembly is recalcitrant, as it might be, then he needs to get his foes voted out of office. It’s called democracy. And democracy and the rule of law are the foundation for the civil rights about which McAuliffe is so exercised.

Virginia’s Email Scandal

House District 72 - does this look compact to you?

House District 72 – does this look compact to you?

by Brian Cannon

Today the Supreme Court of Virginia will hear a case about emails politicians don’t want you to see.  You may miss the story in the news because this has nothing to do with presidential politics. Rather it’s about Virginia’s 2011 gerrymander.

Five years ago, Virginia was split with Democrats in control of the Virginia Senate and Republicans in control of the House of Delegates. Governor Bob McDonnell appointed a blue-ribbon commission to propose less partisan maps for Virginia. Unfortunately, legislators did not take the directive seriously. Instead of agreeing to a reasonable approach that benefited Virginia voters, the partisan political leaders of both chambers agreed to feather their own nests. The Republicans in the House passed the Democratic gerrymander of the Senate and the Democrats in the Senate passed the Republican gerrymander of the House. Bi-partisanship at its worst.

Which lawsuit is this again? In 2015, Citizens from across the political spectrum joined to sue the Commonwealth over the lack of compactness in Virginia’s General Assembly districts. A quick look at the districts will give you a clear view of how non-compact these districts actually are. They include six drawn by the Democrats in the Senate and five drawn by the Republicans in the House. By specifically avoiding districts affected by the complication of the Voting Rights Act, the suit is a clear shot at Article II Section 6’s requirement for compactness without all of the complications of the moving target that is today’s VRA.

This lawsuit is funded by the non-partisan OneVirginia2021 with lawyers and a significant discount provided by Wyatt Durrette’s firm DurrettCrump. This is not the same initiative as the Democratic National Redistricting Trust challenge of racial gerrymandering. One of those cases changed Virginia’s congressional boundaries and the other is before the Supreme Court of the United States this fall.

So how do emails work into this?  In the discovery phase of this compactness trial (yeah, we still haven’t gotten to trial yet), the trial judge in Richmond made a ruling about the scope of legislative privilege. The plaintiffs argued legislative privilege should be narrowly construed — about a foot wide.  The defendants argued it is a broad privilege — about a mile wide. Judge Marchant of the Richmond Circuit Court ruled, in effect, that the privilege was a few feet wide. The House of Delegates complied and has been turning over emails and other related documents since.

>In an unprecedented move to avoid turning over their emails, four sitting state senators requested instead to be held in contempt of court. The court obliged, fining each senator $100 a day since early April. The four sitting senators are all Democrats — the same ones behind the gerrymandering in 2011. Originally, the group included one sitting Republican Sen. Richard Stuart, R-Westmoreland, but he complied with the court order, stating to the Washington Post:

I’m a lawyer and I’m never going to refuse a court order. … You just don’t do that. Number two, I’m a public servant and I’m doing the public’s work. Number three, I believe in transparency.

If only Senators Dick Saslaw, D-Springfield, George Barker, D-Alexandria, John Edwards, D-Roanoke, and Dave Marsden, D-Burke, saw it that way and complied with the trial court’s order.

Brian Cannon is executive director of OneVirginia2021.