Replacing One Inequity with Another

Governor Ralph Northam vetoed a bill yesterday that would have imposed mandatory minimum sentences on repeat domestic abusers on the grounds that racial minorities would be disproportionately affected.

I nearly headlined this post, “Northam to Domestic Abuse Victims: Drop Dead.” I decided that wouldn’t be quite fair. But I wouldn’t be surprised if many people interpret his action that way.

Thanks to Northam’s veto, Virginia might be “fairer and more equitable” to perpetrators of domestic violence. But will it be “fairer and more equitable” to victims? The data is patchy, but considerable evidence suggests that African-Americans are roughly twice as likely to be victims of domestic violence as whites. One could argue that creating racial “equity” for African-American criminals creates inequity for African-American victims, primarily females.

“In recent weeks, I have visited with community leaders across the state seeking input on how I can best use the power of the governor’s office to make our commonwealth fairer and more equitable for communities of color,” wrote Northam in a Washington Post op-ed. “My commitment today will not solve all of the issues with our criminal justice system, but I believe it is a step in the right direction.”

House Bill 2042 would have imposed a 60-day mandatory minimum for assault and battery against a family or household member for someone with a prior assault and battery conviction in recent years. “While violence is unacceptable, these are crimes that can be addressed by a judge with full knowledge of the facts and circumstances of each particular case,” said Northam, who, in the wake of his blackface scandal, has vowed to pursue racial justice.

The 2017 Virginia State Police “Crime in Virginia” report does not distinguish between “domestic” and other crimes. While not all female victims of violent crimes would fall into the “domestic violence” classification, a high percentage would. In Virginia, 56 African-American women were victims of murder or nonnegligent manslaughter that year; 1,243 were victims of forcible sex offenses; and 2,018 were victims of aggravated assault. Many aggravated assault victims (of all races) were classified as a “spouse” (505) or “boyfriend/girlfriend” (1,330).

Those numbers may under-state the actual rate of domestic violence. As the Domestic Shelters website notes, domestic violence often goes unreported. The nonprofit estimates that 1.3 million women are victims of physical assault by an intimate partner each year. If Virginia women experience domestic violence at the same rate as women in other states, that implies more than 32,000 incidents a year in the Old Dominion.

By framing domestic violence as a racial issue, Northam makes it more difficult to protect female victims of domestic abuse — be they black, white, Hispanic or Asian.

“This was a bipartisan effort to protect women from their abusers,” House Majority Leader Todd Gilbert, R-Shenandoah. “Republicans and Democrats in the House as well as the Senate sent this bill to the Governor’s desk by huge majorities. His veto today is unconscionable.” (More than 30 House Democrats joined a unanimous cohort of Republican delegates use in voting for the bill.)

But Northam’s priority is reducing the number of African-Americans in jails and prisons. “Mandatory minimums are focused on punishment, not rehabilitation,” he said in his op-ed.

 We must continue to prepare returning citizens to be successful members of the community. And we must work harder to address the mental health and substance-use disorders that often lead people into our criminal justice system.

We need to focus on evidence-based approaches that ensure equitable treatment under the law. And we must focus on ways to rehabilitate returning citizens, particularly nonviolent ones. I want to give our judges, appointed by the Virginia General Assembly, the appropriate discretion over sentencing decisions. We must remember that punishment and justice are not always the same thing. We are better as a society when we give our judicial system the ability to discern the difference.

That’s a nice theory. Let’s hope it works. I look forward to seeing Northam identify the specific “evidence-based approaches” to rehabilitating wife beaters — he mentioned none in his op-ed — that he proposes to implement. Likewise, I look forward to seeing his proposals to fund those programs. Just to be on the safe side, in case the therapeutic approach doesn’t work, he might consider setting aside a little extra money for battered-women shelters.

Update: House Speaker Kirk Cox, R-Colonial Heights has published his own op-ed in the Washington Post. among the key points he made:

Under this legislation, abused women would have confidence that should their partner abuse them again within 10 years, they would have a minimum of 60 days of respite. Two months to find a new place to live. Two months to file an order of protection. Two months to end an abusive relationship once and for all, without fear of reprisal.

Two months to move on. Two months to start living again.

Data from the Virginia Sentencing Commission shows that, had this been law from 2017-2018, 1,513 offenders would have been sentenced to a minimum of 60 days in jail. That’s more than 1,500 victims who would have had a chance to break free from the cycle of violence. …

The governor … calls for “data-driven” and “evidenced-based” policies. The evidence and data are clear: Virginia has the fourth-lowest violent crime rate in the country and the lowest three-year recidivism rate in the country.

Our tough and clear sentences are strong deterrents, and this bill would have sent a clear signal to those who abuse their family members.

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15 responses to “Replacing One Inequity with Another

  1. This was pure politics, and I think in this case he was talked into a really bad position. These TV and radio ads write themselves. If his goal is (and it is) to cement that 90 plus percent African-American vote to his party, he needs to remember that more than half of them are women. I gotta wonder if they thought this one through…

    This is going to be the ugliest election season Virginia has ever seen, especially if Fairfax is still hunkered down in that office.

  2. The best thing that could ever happen to the Commonwealth would be for Mrs. Northam to awake to find her husband died in his sleep. But should we surprised with the friendliness of the Democratic Party to sexual abuse? One of the Democrats’ favorite presidents of all time is the rapist Bill Clinton. Judged by his own wife’s standard — believe the woman — clearly makes him guilty. And then there’s the rape paper, the Washington Post, which endorsed Bill Clinton twice and Justin Fairfax once.

    • Ouch. That’s pretty harsh, TMT. I get your drift — Dems are hypocrites on the sexual abuse issue. But the best thing that could happen to the Commonwealth would be for Northam to die in his sleep? Even for hyperbole not to be taken literally, that’s a little over the top!

  3. I find Northam’s hypocrisy on race beyond the Pale. Knowing that he appeared in blackface right before his graduation from medical school, he regularly attacked Gillespie as a racist. When caught, Northam’s response was first to admit; then deny; then pander on race to the point where he wants to give a break to men who sexually abuse women. The world would be a better place without Northam. He has no conscience whatsoever.

  4. The reaction to Northam’s action was what I feared and anticipated. His announced policy is the right one, but, like a lot of his actions recently, he muddled it up with the wrong reasons.

    Mandatory minimum sentences often lead to unfair sentences, considering the circumstances. U.S. District Court judges have chafed for a long time under the mandatory sentences in the federal criminal code. I remember seeing several instances in which judges practically apologized to offenders for having to hand down significantly long sentences, which clearly were not appropriate under the circumstances of that case. It is my impression that the major criminal justice reform bill passed by Congress earlier this year eliminated many of the mandatory sentence provisions, giving the judges more discretion.

    The Virginia criminal code generally gives judges wide discretion in sentencing. For example, a Class 6 felony (the most common and lowest level felony) is punishable with a sentence of up to 12 months in jail or 1 to 5 years in prison. General law also authorizes a judge to suspend all or a portion of a sentence.

    Virginia has an optional sentencing guidelines system that is the national model for states. That system provides a recommended sentencing range for a specific convicted offender. The recommendation is based on the actual sentences that judges throughout the state have levied on the same offense in comparable circumstances. The guidelines take into account several factors, including the prior criminal history of the offender.

    Although the recommended sentence produced by the guidelines is not binding on the judge, consistently 80 percent of the sentences handed down each year are within the guideline recommendations. Of those that are not “in compliance”, they are split about evenly: 10 percent of the sentences exceed the recommendation and 10 percent are below the recommendation.

    For many years, many members of the General Assembly have apparently felt that, in exercising their discretion, judges have not been imposing long enough sentences. The result has been the addition of provisions that specify a “mandatory minimum” sentence for certain offenses, thereby limiting a judge’s discretion.

    Mandatory minimum sentences are a “one size fits all” approach to criminal justice. That approach can lead to a perversion of justice because not all offenders are the same and not all offenses are committed under the same circumstances. Judges preside over the trials. They have the benefit of pre-sentencing reports that provide some background regarding the offender. As a result, they are in the best position to determine the appropriate sentence in an individual case, rather than legislators sitting in Richmond introducing bills with mandatory minimum clauses that seem more intended for re-election purposes than anything else.

    Governor Northam is right to adopt the policy of vetoing any mandatory minimum legislation. It is unfortunate that one of the first bills to fall under this policy was a popular one dealing with domestic violence with a minor mandatory minimum (60 days). But, at least, he cannot be accused of being inconsistent or playing favorites; the bill’s chief sponsor was a Democrat. It is also regrettable that he chose to justify his policy in terms of disproportionate impact on minorities. It leaves him open to charges that he is just trying to repair his relations with the Black Caucus, rather than being seen as addressing an issue that affects everyone, whatever his or her color, in the criminal justice system.

    • Popular opinion seems to swing back and forth between mandatory sentences and giving judges more discretion. Mandatory sentences are, as you described, a blunt instrument of justice that ignores mitigating circumstances. But giving judges significant leeway also can lead to miscarriages of justice by letting bad dudes go free to hurt people again. Any honest person, I would think, would acknowledge that both approaches have pros and cons.

      Is a minimum 60-day sentence an unreasonable precaution to protect a woman from her “boyfriend” or spouse from coming home and beating her up again? It would be nice to have some data to tell us how often that scenario occurs and how long is a reasonable “cooling off” period. What do the experts say?

  5. Dicks responses are informed and thoughtful and appreciated.

    I too think it’s the “mandatory minimum” that is problem and in the end – do we trust the ham-handed one-size-fits all approach from the GA over judges?

    It’s reminiscent of George Allen convincing the General Assembly to abolish parole – and we ended up having to build more prisons and it doubled our correctional costs…

    Our problem is that despite the name ‘corrections” , we do not really have programs that actually are effective at rehabilitating lower-level offenders (compared to hardened violent felons who are a dire threat to anyone they come into contact with). We often send the domestic abusers to live among the professional felons.

  6. And we had a much higher murder and crime rate when we had no mandatory minimums and lots of parole. I agree fully that everyone, who does not commit violent crimes, should get a second, perhaps, after some imprisonment. But do we really want men (or women) who beat up their partner probably numerous times on the street?

    Does the public want murderers, rapists and other violent people living in our communities?

  7. Nothing is more disgusting than a man who hurts women or children. It appears a majority of the legislature agreed and wanted to rightfully impose harsh sentences on the worst of us. I find it very odd that our Governor will go above and beyond to benefit the absolute lowest of humankind because the supposed percentage of those commuting the crimes simply is weighed more heavily to one arbitrary side. Would he veto a law of it disproportionately affected blondes, talls, skinnys, or those with IQs above the norm? Abortion also disproportionately affects black children in the womb……

    • In all the gnashing of teeth and partisan posturing, the actual terms of the legislation are being overlooked or ignored.

      Under current law, assault and battery of a household member is punishable as a Class 1 misdemeanor, for which a judge can impose a sentence of up to 12 months in jail and suspend any or all of it. If such assault and battery occurs and there have been 2 prior convictions for the same offense within 20 years, the offense is a Class 6 felony, for which the sentence can be up to 12 months in jail or 1 to 5 years in prison, with some or all of the sentence suspended.

      The proposed legislation, which the Governor vetoed, would have dealt with a second conviction of assault and battery of a household member within ten years. The offense would still have been a Class 1 misdemeanor, but would have carried a mandatory minimum sentence of 6o days. The Governor vetoed this bill because of his new policy of opposing all mandatory minimum sentences. Keep in mind that there is nothing in the current law (unaffected by the veto) that would prevent a judge from sentencing any person convicted of assault and battery of a household member, be it first or second offense, to more than 60 days in jail (up to 12 months). So, the criticism that the Governor is abandoning victims of domestic violence is faulty.

      As for Speaker Cox, his comments are, to be polite, disingenuous. First, let’s take the statement, “Data from the Virginia Sentencing Commission shows that, had this been law from 2017-2018, 1,513 offenders would have been sentenced to a minimum of 60 days in jail.” I suspect that the 1,513 is the total number of persons convicted of this statute. If so, then how many of those were sentenced to less than 60 days and how many to more than 60 days? We are not told those numbers. Second, he laments that, but for the Governor’s veto, victims would have “Two months to move on. Two months to start living again.” That is not how it works with Virginia criminal sentences. First of all, offenders get credit for time spent in jail awaiting their trial. So, if the law had gone into effect, an offender charged with a second offense within ten years who could not post bond would probably stay in jail at least 30 days until his trial. If he got the mandatory minimum 60 days, that would amount to 30 additional days in jail. But, furthermore, state law authorizes sheriffs to award “good time” credits to those convicted of misdemeanors. Good time policies vary from jail to jail, but, to be conservative, let’s say that an offender gets one good time credit for every two days served. That would reduce his actual time served by another 10 days to a total of 20 days served. In exaggerating the purported effects of the legislative proposal, the critics of the Governor are ignoring, or deflecting the discussion from, the value of the overall policy of doing away with mandatory minimums.

  8. Without finding fault in Dick Sizemore’s above analysis, I suggest that the overriding tragedy here is how little our society understands and appreciates that tremendous harm that domestic abuse does to children particularly, especially disadvantaged kids. It typically destroys the lives of the lives of these children with great regularly. There it is the rule, not the exception. This is extremely well documented.

    “From the brain’s evolving circuitry to the child’s child’s capacity for empathy, is affected by the environments and experiences that are encountered in a cumulative fashion, beginning from the prenatal period and extending through the early childhood years,” said a National Academy of Science report. These adverse early childhood experiences have a profound impact on the architect of a developing human brain, including its emotional, verbal, and mathematical, and coping skills and capacities, and other executive functions.

    “For example, the Adverse Childhood Experience Scale developed by scientists predicts with accuracy “How early adverse experiences correlate with poor adult health, high medical care costs, increased depression and suicide rates, alcoholism, drug use, poor job performance and social function, disability, and impaired performance of subsequent generations.” This particularly impacts adversely disadvantaged children, creating vicious cycles destroying whole families and generation who follow those families. These families, and the kids within them, are up to five times more likely to be severely impacted.

    In short, the real dominant cause behind dysfunctional disadvantaged kids is the abuse, neglects, and harm done to them within their dysfunctional family.

    See generally Our Kids, by Robert Putnam, pages 109-117.

    • Sorry for need to correct above text.

      Without finding fault in Dick Sizemore’s above analysis, I suggest that the overriding tragedy here is how little our society understands and appreciates that tremendous harm that domestic abuse does to children particularly, especially disadvantaged kids. It far too often destroys the lives of many of these children. This is extremely well documented.

      “From the brain’s evolving circuitry to the child’s child’s capacity for empathy, all this is affected by the environments and experiences that are encountered in a cumulative fashion, beginning from the prenatal period and extending through the early childhood years,” said a National Academy of Science report. These adverse early childhood experiences have a profound impact on the architecture of a developing child’s brain, its emotional, verbal, and mathematical, and coping skills and capacities, and other executive functions.

      “For example, the Adverse Childhood Experience Scale developed by scientists predicts reliably “How early adverse experiences correlate with poor adult health, high medical care costs, increased depression and suicide rates, alcoholism, drug use, poor job performance and social function, disability, and impaired performance of subsequent generations.” This particularly impacts adversely disadvantaged children, creating vicious cycles destroying whole families and generation who follow those families. These families, and the kids within them, are up to five times more likely to be severely impacted.

      In short, the real dominant cause behind dysfunctional disadvantaged kids is the abuse, neglects, and harm done to them within their dysfunctional family.

      See generally Our Kids, by Robert Putnam, pages 109-117.

      • If we’re looking for “root causes” of poverty and social dysfunction, child abuse is surely one of the most important. That is where we, as a society, should be devoting more attention and resources. What we get instead is top-of-the-front-page articles like that in the Richmond Times-dispatch today bemoaning the “racial disparity” in Richmond city police field data reports. Maybe the newspaper should focus on real problems like the disastrous management of child protective services in Virginia.

    • Here, per the Adverse Childhood Experience Scale, is a list of traumatic events in a young child’s family life that fatally impairs that child’s cognitive, emotional, executive decision making, and self control, mechanisms:

      1/ Household adult humiliates or threatens child physically,
      2/ Household adult hits, slaps, or injures child,
      3/ Adult sexually abuses child,
      4/ Child feels no one in family loves or supports child,
      5/ Parents separate/divorce,
      6/ Child lacked food or clothes or their parents too drunk or high to care for child,
      8/ Child’s mother or stepmother is physically abused,
      9/ Child lives with an alcoholic or drug user,
      10/ Household member depressed or suicidal,
      11/ Household member imprisoned.

      As these events pile up in a child’s life, the child all too often slowly dies cognitively, emotionally, and intellectually, destroying the child’s normal process of maturation, their ability to form an identity that is capable of acting productively in society.

      Children “who grow up in low income, less educated families are at considerably greater risk.” Even kids living at twice the poverty level are two to five times more likely than their less impoverished peers to experience and be impacted by these traumas. Cumulatively, these impacts can be, and far too often are, devastating to such children, and entire families. Toxic emotional stress overwhelms these families and radiates out into their entire community – their neighborhoods, schools, and future. A toxic culture arises, one that destroys its own children for generations, unless and until that culture cleanses itself of its destructive habits, and attitudes.

      For example Harvard Medical School Biopsychiatrists “have shown that mothers who frequently abuse their children even verbally can impair the circuitry of those kid’s brains.” Indeed, simply chronic neglect by parents typically have devastating impacts on kids, degrading their inability to learn, to empathize, and function productively as adults. See generally Our Kids.

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