Progress Check on Criminal Justice Reform and Budget Fix

Senate of Virginia, in session in Science Museum Photo credit: Virginian Pilot

By Dick Hall-Sizemore

Although there is not an official “cross-over” deadline for legislation in the special session, each house of the General Assembly seems to have largely completed consideration of its own bills. Thus, this is a good time to review their progress on enacting the Democrats’ agenda on criminal justice reform and revising the budget.

Criminal justice system reform

I have prepared a table (available here) listing all the major bills and the actions of each house. As is usually the case in legislative sessions, there were multiple bills introduced on some subjects. The usual procedure is to pass only one bill and “incorporate other bills into it, giving credit to the incorporated bills in the header. Accordingly, when there were multiple bills on an issue, I have listed only the bill that was selected to go forward.

In order to be somewhat consistent, I have used the same format that I used previously in summarizing the announced criminal justice reform agendas. I have also included several issues that surfaced during the session that were not on that agenda.

Some summary take-aways:

  • The Senate chose to bundle many issues into an omnibus bill (SB 5030), whereas the House limited bills to narrow issues. (While touted as efficiency, an omnibus bill is a legislative tactic often used to hide some provisions or protect some issues that might have less support if they had to stand alone.) Using different legislative approaches on the same issues could complicate efforts later to reconcile differences.
  • Overall, the House Democrats have been more aggressive. Their bills are more prescriptive, are more likely to set out mandates, and go further in attacking the “blue wall of silence.” On the other hand, Senate Democrats, perhaps because they are operating with a much thinner legislative margin than their House counterparts, seem to have been more willing to temper their bills in order to accommodate objections. See, for example, SB 5032, the bill modifying the penalty for assaulting public safety personnel.
  • There are some other significant differences on major issues, such as citizen review boards (HB 5055 and SB 5035) and legislation dealing with circumstances involving persons with mental health problems (HB 5043 and SB 5038). The House and Senate Democrats have been sniping at each other during the special session. Those tensions, combined with the passion and feelings of righteousness on the part of the House Democrats, may make it difficult to reconcile the differences.
  • One major issue, abolishing qualified immunity, has already fallen to the caution of the Senate. Senate Democrats joined Republicans in killing the House-passed bill (HB 5013), as well as the Senate counterpart (SB 5065) in committee.
  • Nevertheless, despite the differences between the two houses, the fact that each house has favorably acted on most major proposals (with the exception of qualified immunity) augurs well for the overall agenda.
  • House Democrats in their zeal are passing legislation without regard for their possible costs or feasibility. Two examples:

HB 5148, expanding earned sentence credits.  There could be a significant cost to implement this bill. However, no fiscal impact statement was prepared. Indeed, there was no time to prepare a FIS because this bill was on a fast track unusual for even a special session. It was reported from the Courts of Justice Committee the day after it was introduced and, two days after that, it was reported from Appropriations to the floor. Within an interim of eight days, there were four versions of the bill, with the last version presented as a substitute on the House floor. It is doubtful that any member of the House knew how many offenders the final version of the bill would affect and the patron admitted in his remarks that it was unclear what the cost would be.

(For my discussion of the implications of this legislation for the state’s criminal justice system, see here. The full House spent about seven minutes debating this bill on second reading.  One Republican offered sort of half-hearted opposition to it. On third reading, final passage, there was no debate. In contrast, there was at least an hour of debate on both second and third readings on HB 5049, prohibiting police from acquiring military-style weapons and restricting the use of tear gas, with Republicans waging active opposition. The priorities of the members are frustrating to me sometimes.)

On the other hand, the FIS for the Senate counterpart (SB 5034) estimated a cost of at least $1 million to make the needed changes in DOC’s automated systems plus ongoing costs for additional probation officers.

Furthermore, although DOC estimates that it would take about two years to make the needed changes to the codes in its systems, the House bill would become effective July 1, 2021, less than a year from now.

HB 5043, requiring each community services board (CSB) to establish a team of mental health professionals to respond to situations involving persons experiencing a mental health crisis, with law enforcement in a back-up role.  Under the provisions of this bill, a CSB serving several rural counties would be expected to have a team of mental health professionals able to respond immediately to a situation anywhere in the district involving someone in a mental health crisis. Enough said.

Budget

The General Assembly seems, at best, to be treading water regarding the budget, according to reporter Michael Martz of the Richmond Times-Dispatch. This is after almost a month after convening in a special session supposedly for the primary purpose of “fixing” the state budget after the pandemic caused a significant decline in state revenues.

Not only does neither house seem to have a plan, there is no process in place for reconciling their differences and adopting a final budget, and the budget committees in the House and Senate are not talking to each other.

At the end of September, state agencies will have gone through a quarter of the fiscal year without knowing the amount of money they will have to work with during the year. Local school divisions do not know how much state assistance they will receive. Institutions of higher education do not know how much general fund assistance they can count on. Depending on what changes, including cuts, the General Assembly makes, these entities will have no more than nine months to implement them. This sort of uncertainty makes it hard to plan an agency’s activities for the year. The governor could have easily avoided this situation if he had followed the practices of his predecessors and dealt with the budget shortfalls administratively and not called a special session of the legislature.

To top it all off, as soon as the special session wraps up (assuming that it will), agencies will be asked to go through a regular budget development process, submitting proposed budget amendments to the Governor for consideration for inclusion in his 2021 budget bill and the Governor’s Advisory Council on Revenue Estimates will be meeting with the governor to develop another revision of the revenue estimates for the 2021 legislative session.

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22 responses to “Progress Check on Criminal Justice Reform and Budget Fix

  1. The Long Parliament continues….who shall be their Cromwell?

    You write of the “Democratic agenda” when it comes to the bills dealing with police activity, and that of course is because there was no organized agenda or even set of endorsed proposals from the Republican side. They have voted for some of the bills, and had proposed various bills on their side (some quite good). But there was no organized list, no messaging, just reaction and response. That more than anything explains their slide into meaninglessness….

    When Republicans were perceived as meaningless before, say the 70s and mid 80s, the story was always the tension between the House and Senate Ds, or between the various factions inside the House.

    I suspect in part the Senate “omnibus” approach was intended to drive more Republican nays, as several got up in debate to point out that some elements they strongly supported, but some they could not. And nine months on budget decisions? Don’t forget there will be a caboose bill in February, with an emergency clause. So another set of changes in less than six months.

    • I think you hit the nail on the head, not only with Virginia but at the Federal Level as well. Everything is being placed as riders or amendments in “omnibus” bills. Nothing stands on its own merits and when it doesn’t pass whoever submitted the bill can say to the media. Look they don’t support you, they are bad.

      • John C. Calhoun used the Senate rules and a coalition to stop Henry Clay’s Omnibus Bill in 1850. Nearly derailed the admission of California as a state. The foil was newcomer Stephen Douglas. He was able to untangle the Omnibus Bill and demand a vote on each part thus averting a Civil War. Millard Fillmore’s only major contribution was signing the Compromise of 1850 into law.

    • Unlike you, I suspect the omnibus bill approach was used to avoid having some Democrats, such as Chap Peterson, join Republicans in killing some measures if they were stand-alone bills. The Republicans will get their chance to vote for individual issues in the form of individual House bills. (Stanley especially made the point that there were some items in the omnibus he could support.)

  2. Another good post giving good insight into legislative process – thanks.

    I was curious how the different bills actually get reconciled. Do you have any knowledge on the process in terms of how issues are resolved and if they are not , what happens?

    Then once legislation does get passed – and the laws get converted to regulation – how are conflicts there resolved? For instance, if the law has conflicting language where something can’t be two different things, a choice has to be made.

    Finally, on fiscal impacts. If there are major fiscal impacts, do the agencies not implement if they do not have the funds? Will they wait until the GA specifies where the funding comes from?

    I’d note for example – a different agency – VDOT – where a road was approved for funding then subsequently – issues came up adding to the cost and VDOT said that the shortfall had to be reconciled by the county – not VDOT. The county seems to have two choices, pay up or forgo the project.

    If that type of thing happens to these police regulations, it may take years for some of it to actually happen. I don’t see the local jurisdictions eating the costs unless they have no choice because funding for other things is tied up… i.e. “Do these 10 things that used to be 9 if you want funding for the 9 to continue also”.

    Pretty sure this does not happen in the GA itself……….

    • If one bill passes both houses with different wording and both houses formally insists on its version, a committee consisting of members from each house is appointed to work out the differences. This conference committee reports its recommendations to each house, either of which may reject them.

      My reference to reconciliation was to the omnibus bill versus a bunch of stand-alone bills. It would be possible to pass both the omnibus bill and the stand-alone bills with different wording on the various subjects. If the different wording on police decertification, for example, was not in direct conflict, there would not be a problem and the provisions of both bills would become part of the Code of Virginia. However, if the wording on another issue, such as no-knock warrants, were in substantial conflict, that would constitute a problem. I think one rule of construction is that, in the case of conflicting statutes, the last one signed is the one that prevails. There is a legislative body, the Code Commission, that has the responsibility of sorting all such things out.

      As for the fiscal impact, if an agency is directed to do something, it cannot refuse to do it because the legislature did not provide an explicit appropriation to do it. For example, if DBHDS is directed to establish community crisis teams in community service board regions and the GA does not provide an explicit appropriation to do that, the agency will have to find the funds within its existing (base) appropriation to implement this directive. Perhaps an agency activity that is not explicitly required will have to be abandoned and funding shifted to the new mandate. Perhaps position vacancies can be held empty for longer than normal, generating some turnover/vacancy savings that can be used for the new mandate. That is probably one reason the GA has been holding up on producing a revised budget; they need to figure out how, and if, they are going to find the money to pay for these legislative initiatives.

  3. Dick Hall-Sizemore – Thanks for putting this together. It’s a lot to digest.

    To simplify matters with regard to policing, how about if we just look to places with surging murders and crime like Minneapolis and then do the opposite?

    “More people have been killed in the city in the first nine months of 2020 than were slain in all of last year. Property crimes, like burglaries and auto thefts, are also up. Incidents of arson have increased 55 percent over the total at this point in 2019.”

    Minneapolis City Council Panics Over Surge In Violence After Demonizing Police: ‘Where Are The Police?’

    https://www.dailywire.com/news/minneapolis-city-council-panics-over-surge-in-violence-after-demonizing-police-where-are-the-police

  4. For as long as I can remember, it was said that law making was akin to sausage making.

    Nothing I have seen and heard has dissuaded me from the truth of that.

    In our schooling, we’ve been taught many myths – basically the “heroic” version of our country, it’s values, ideals and governance.

    People who are actually historians know the truth and from time to time write books and articles to clue us in – and often outrage and cries of “revisionist history” fly.

    We actually do elect folks who we send to write the laws, but we are like forever innocents who react in horror that they do this sausage-making thing… like there has to be some alternative…..

    😉

    • That was the big revelation to me when I first started working on the legislative staff. I was fresh out of graduate school and studying political science. At that time, political science was embarking on statistical studies of government and the legislature. The implications of such approaches were that the legislature process was a rational process that could be explained in terms of quantifiable variables. What a shock it was to discover that there is a lot of irrationality, which can be explained in terms of human behavior, a lot of which is not quantifiable.

      • Very true. That’s why it makes sense to give government a little power as possible. Additionally, government closest to the people represented is better than having all decisions made centrally. It may be difficult to fight city hall, but one is more likely to effectuate change locally than to make a change that literally requires an act of Congress.

  5. Aren’t “omnibus” bills a violation of the Constitution of Virginia?

    The first sentence of Article IV, Section 12 states: “No law shall embrace more than one object, which shall be expressed in its title.”

    • The object” expressed in the title of SB 5030 is “policing reform”. For sure, that is a pretty broad “object”, but it is not unusual in the GA. And, the constitutional requirement does have a limiting power. The bill could not have included sections related to insurance, state parks, or agriculture, for instance.

      • Omnibus legislation containing several laws is not omnibus law!

        You can have dozens of separate and distinct laws that were passed in as omnibus legislation.

        That was one of the focus of my question about how differences between the two houses – in omnibus legislation is resolved.

        These laws start out separate in different committees.

        When they go to reconciliation – are they also handled with different committees that then (I assume) once it’s all put back together is going to be acceptable to both houses and if not – the whole package multiple bills, goes down?

        • The reconciliation process is always great political fun. Lots of wheel bearing grease used here and left over fat back drippings too.

        • In this case, the omnibus bill (SB 5030) was originally drafted to include several aspects of police reform. In committee, it was amended to include aspects of several other individual bills. If the bill is amended i the House, the Senate then will be asked if it accepts the House amendments. If the Senate does not accept those amendments, a conference committee will be appointed. This is not the standing committee that considered it in the Senate or House, but will likely include several members from those committees.

          The same will be true of the stand-alone bills passed by the House and being considered by the Senate.

          What is likely to happen is that each house will amend the other house’s bills to make them look like theirs and then there will be bunch of conference committees which someone will have to coordinate–a tall order.

          Another scenario, and maybe more likely, will be that the Senate will kill all the individual House bills whose subjects are included in the Senate omnibus bill, leaving that as the only vehicle to negotiate over.

          • re: ” What is likely to happen is that each house will amend the other house’s bills to make them look like theirs and then there will be bunch of conference committees which someone will have to coordinate–a tall order.”

            they gonna do this virtual? 😉

          • Dick Hall-Sizemore

            That is a good question. They can do the amending part–House committees have been meeting in the virtual mode. However, I don’t know how they will handle conference committees. Maybe they will set up Zoom meetings. That would be interesting. Technically, conference committee meetings are supposed to be open to the public, but, during a regular session, there is no set time and they are often called on short notice, so the public does not get to attend. Also, sometimes there are no actual meetings. They do it informally with one person talking to others and working through staff. Zoom would definitely be different.

  6. Baconator with extra cheese

    Looks like the House Dems are really eating up that per diem!
    I’m so glad the Blue Wave is washing away the Orange and Red sins….

  7. “LIKE” 😉

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