Category Archives: Crime and corrections

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.

Educating Teens on Interactions with Police

police_and_teensby James A. Bacon

As part of his broader 21st-Century Policing Initiative, Attorney General Mark Herring has unveiled a program to educate teens on their rights and responsibilities in interacting with law enforcement. The idea is to keep situations from escalating to the point where the safety of either the youth or police is put in danger.

“For more than two years I’ve been having conversations with law enforcement, parents, ministers, community leaders and others about how we can meet our dual goals of making sure that police can keep our communities safe while guaranteeing that everyone is treated fairly and equally,” said Herring in a press release.

“One thing I heard is that many parents, especially African-American and Latino parents, worry about their child reacting to police in a moment of panic and either getting in more trouble or even creating a potentially dangerous situation. If we can help our young people understand their rights and responsibilities, and help them understand what an officer is seeing and thinking during an encounter, we can take some of the fear out of those interactions and make them safer,” Herring said.

The program is the latest module in the AG’s Virginia Rules program delivered through more than 1,500 law enforcement officers, school resource officers, commonwealth’s attorneys, and community leaders. So far in 2016 some 45,000 Virginia students have participated in the program.

Bacon’s bottom line: This program makes total sense to me. Almost every incident involving police-on-citizen violence results from a situation that starts peacefully and spins out of control. Most would agree that police need training to learn how to deal with these situations. But it takes two to tango, so to speak. Young people could benefit from training as well. Hopefully, the new module will be made available to all high school students, not just the stereotypical disadvantaged African-American kids. Young males of all ethnicities are prone to hot-blooded behavior and need to know how to conduct themselves around the police.

Here’s Hoping Herring Succeeds with his “Equal Justice” Initiative

Attorney General Mark Herring

Attorney General Mark Herring

by James A. Bacon

State Attorney General Mark R. Herring has launched a statewide initiative that has garnered less press attention than it probably warrants: an “equal justice” program that includes “implicit bias” training for police officers, updating of academy training materials, minority officer recruitment, and improving interactions between law enforcement and young people.

The rollout comes against the backdrop of police killings of unarmed black men in various locations around the country and retaliatory killings of police in Texas. Once can argue whether policing is as discriminatory against African-Americans as portrayed by the Black Lives Matter movement and the media. Police kill twice as many whites as blacks, after all, even though such incidents receive minimal media attention. But as Herring emphasizes:

Here in Virginia, I think most of us, if probably not all of us, agree on two goals: No. 1, we want to make sure law enforcement can safely and effectively protect our communities, and we want to make sure everybody is treated equally and fairly. There are two goals I think we can all agree on, and they are not in conflict with one another. And I would submit we have to get them both right if we’re really going to have the safe, successful communities we want.

I certainly share those two goals. Insofar as the criminal justice system is stacked against minorities, we need to reform it. The question comes down to implementation. In striving for “equal justice” for minorities, do we sacrifice community safety? When we ask that question, let us bear in mind that any diminution of safety will come mainly at the expense of minorities, thus creating a new form of injustice.

I have no settled opinions on Herring’s main initiatives. In the abstract, they are appealing. Yes, policemen should be devoid of ethnic/racial bias. Yes, we should have more minority policemen, particularly African-Americans, to patrol African-American neighborhoods. Yes, police should work harder to build trust with the communities they work in.

On the other hand, also in theory, it may be possible for police to get too touchie-feelie in their dealings with the criminal element, thus giving bad guys more leeway to do their bad-guy thing. We have seen in cities from Baltimore to Chicago what happens when police back off — the murder rate goes up.

As a conservative who believes that the maintenance of “law and order” is the most fundamental function of government, I say let’s wish Herring well with his initiatives to make Virginia safer and to create color-blind policing. But let us also pay very close attention to the results. The number of “violent” crimes in Virginia peaked at 24,160 in 1993. The number declined consistently thereafter to 15,676 in 2012, before bumping back up to 16,340 in 2014, according to DisasterCenter.com. I’ll be watching.

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.

A Different Kind of Police-Kill-Unarmed-Black-Youth Story

Brown and Cobb

Paterson Brown Jr. and David L. Cobb. Photo credit: Richmond Times-Dispatch

by James A. Bacon

Chesterfield County has its own cop-shooting-and-killing-an-unarmed-black-youth story, but it has generated little controversy — presumably because the police officer was himself black, thus side-stepping the racist-white-cop narrative. It is instructive to read the account of court testimony in the policeman’s trial to get a sense of the ambiguous situations in which police find themselves forced to make life-and-death decisions.

Here are the basic facts based on the Richmond Times-Dispatch‘s coverage of the trial: David L. Cobb, an off-duty, 47-year-old Chesterfield police officer, was getting his girlfriend’s car washed at the Better Vision Detail & Car Spa on Midlothian Turnpike when 18-year-old Paterson Brown Jr. inexplicably hopped into the vehicle. Cobb confronted Brown, struggling to open the door as Brown tried to close it. Observing that the teenager was acting strangely and incoherently, apparently from drug use, Cobb announced that he was a police officer and warned him four times to stay still. At one point, Brown leaned back and said, “I don’t f— with cops” but he did not comply. When Brown moved his left hand across his waist, Cobb believed that he was reaching for a gun. He shot the youth in the pelvis, severing a vital artery and killing him. As it turned out the youth was unarmed.

The prosecutor argued that Brown’s act of reaching across the waist “does not give you the right to use deadly force.”

But David Baugh, a black attorney who has represented five other Richmond-area officers in use-of-force killings, countered that every officer (1) is responsible for stopping a crime when he or she sees it, and (2) fears for his or her life when approaching a vehicle.

“He doesn’t have a right to walk away,” Baugh said. “He took an oath. It’s his moral duty to stick his nose in it.” To convict Cobb, he told the jury, prosecutors “have to convince you there’s no reason to be scared.” Brown set the tone with his bizzare behavior, glaring at Cobb after the officer spotted him inside the car. “Is he reasonable to be fearful? Yes. [Officers] all know.”

Bacon’s bottom line: Police officers have every reason to fear that young men acting strangely and actively resisting direct commands might pull out a gun and shoot. Forty-five law enforcement personnel, two of them in Virginia, have been killed in the line of duty so far this year. Cobb had to make a split-second decision. He made the wrong decision. Indeed, Cobb was so remorseful that he broke down sobbing while testifying in court and the judge had to suspend proceedings for ten minutes while he composed himself. But Cobb did not create the situation. Brown did. And, while his death was tragic and out of proportion to anything he did wrong, he brought it upon himself.

After a two-decade decline, violent crime is on the upswing. Ironically, most of it is black-on-black crime — a perverse result of the “Ferguson effect” in which police dial back their interventions and the Black Lives Matter movement which has encouraged black youths to distrust police and resist arrest. To revive a phrase from the 1960s, I’m on the side of “law and order.” If I were on Cobb’s jury, I would not vote to convict. And, if the T-D‘s account is fair summary of the facts presented, I’ll bet his jury won’t either.

Civil Rights for Me, Not for Thee

Justice-free zone?

Justice-free zone?

A former University of Virginia law student filed a federal lawsuit yesterday alleging that the university, following guidelines issued by the federal Office of Civil Rights, violated his due process when finding him responsible for sexual misconduct with an intoxicated student and banned him from the university.

According to the suit, a retired judge serving as fact-finder in the U.Va proceeding found that the plaintiff, identified only as “John Doe,” did not have “effective consent” when he had sex in August 2013 with a fellow law student, “Jane Doe” on the grounds of her alcohol consumption. The judge, who called the decision “very close,” was required by the Office of Civil Rights to use the “preponderance of the evidence” standard of proof rather than the stronger “clear and convincing” standard.

John Doe was found responsible for the incident and sanctioned with a life-time ban and four months of counseling. He received his degree but has not yet been admitted to the bar and cannot practice law, reports the Richmond Times-Dispatch.

Bacon’s bottom line: Details from the news account, and presumably the lawsuit itself, are so meager that it is impossible for a reader to draw strong conclusions about the incident itself. We don’t know how drunk the woman was, how drunk the man was, or what communication may have transpired between the two. If the woman passed out and John Doe had sex with her, he should be charged with rape and, if convicted, sent to prison to serve a sentence between five years and life as called for in the Virginia penal code. If they had both been drinking heavily, engaged in sex and the woman later regretted the act, he shouldn’t suffer punishment at all.

Most likely, the circumstances were more ambiguous that those two examples. Regardless, it seems that the system of administrative justice imposed by the Office of Civil Rights likely led to a miscarriage of justice. If a real rape occurred, John Doe got off easy. If the incident was a case of mutually agreeable drunken sex, he shouldn’t be punished at all. Because the incident occurred in a university environment, the normal rules of criminal procedure were suspended in order to achieve a politically driven result dictated by Washington.

— JAB

When Bubbas Go Bad

Photo credits: Roanoke Times

From top: David Copeland, Robert J. Kelley Jr., Michael Clark, James Todd Edwards, Wes Rosenbalm, and Paul Hurley. Photo credits: Roanoke Times

Once upon a time, Bristol Virginia Utilities in far Southwest Virginia was lauded as a spunky, small-town electricity and water utility that provided high-speed Internet services to an under-served population. Now, as the Roanoke Times describes it, the company’s “culture of corruption, entitlement and greed,” has been laid bare. So far, nine former utility executives, board members and contractors have pleaded guilty or been convicted of corruption charges. The Roanoke Times summarizes the stink:

The utility was rife with self-dealing, extortion, tax evasion and fraud. There were kickback and bid-rigging schemes, demands BVU’s major vendors underwrite fancy holiday parties (one cost more than $12,000) and provide executives with choice tickets to pro football and college basketball games, NASCAR races, horse races and other sporting events.

Court records depict one case in which some top BVU executives and board members took a weekend trip to Texas, where they relaxed in hotels, dined in restaurants, rode in limousines and watched the NFL’s Dallas Cowboys from luxury skybox seats at AT&T Stadium, all courtesy of a company awarded a $4.5 million contract from the agency.

Rank-and-file employees picked up at least $48,000 total in untaxed bonuses paid as gift cards and cash. Top executives received country club memberships valued at $70,000 , fully loaded GMC Yukons for personal use, and car allowances. Those extras weren’t taxed either.

Meanwhile, the utility’s customers got hit with water, sewer, electric and cable-TV rate increases in a region where the median household income is $33,600 and the poverty rate is 22 percent.

Stace Pomrenke, Bruce James Chilton, and G. Walter Bressler.

Stace Pomrenke, Bruce James Chilton, and G. Walter Bressler.

Caught in the net are Paul Hurley, former BVU board chair and mayor of Bristol; Bruce James Clifton, former board chair; Wes Rosenbaum, former CEO; and G. Walter Bressler, former general counsel.

There’s no point in lamenting greed and corruption — they are encoded in the human genome. The trick is building mechanisms into the system that hold accountable the people in power. I suppose we can say that the system worked at one level — the justice system is holding the BVU executives accountable. Ideally, BVU would have had systems to prevent such abuses from occurring in the first place.

Is it just me, or is corruption and abuse of power in Virginia getting more frequent and more audacious these days?

— JAB