Yes, the General Assembly is Still in Special Session

The Virginia Senate in its spread formation

by Dick Hall-Sizemore

It is time to check in on the progress of the endless session of the General Assembly. It is apparent that it was a mistake for the House to meet virtually. If the Delegates had been required to stay in Richmond the whole time, rather than being able to “attend” committee meetings and floor sessions from the comfort of their homes, they would have finished much quicker. But, maybe it is not endless; leaders of both houses are predicting they will be able to finish up by the end of next week.

Budget. The legislature has not gone through the formal process of getting the budget bill into conference and appointing conferees. Nevertheless, the chairs of the two money committees, Del. Luke Torian, D-Prince William, and Sen. Janet Howell, D-Fairfax, report they are close to a final budget deal, according to today’s Richmond Times-Dispatch.

But, Governor Northam is not happy with the approaches the two houses have taken and is threatening to throw cold water on any deal and veto it. He does not like the contingency spending that was in both the House and Senate versions of the budget bill, because those provisions commit funding that he wanted to keep in reserve due to uncertainty over the fiscal effects of the pandemic. He also does not like the legislature designating how most of the federal CARES money should be spent on COVID issues, thereby decreasing his flexibility over that $1 billion pot of money. (For a more detailed discussion of these issues, see my previous post here.)

Secretary of Finance Aubrey Layne repeated his earlier position, “We do not need a new budget for financial purposes.” That remark leads to the obvious question: “Then why did the governor call the special session?”

Criminal justice reform. Progress has been made on some criminal justice issues, although the two houses have been at odds over some of them.

Assault of law-enforcement officers (SB 5032)—Killed in House committee. (See discussion of this legislation and its demise here.)

Jury sentencing (SB 5007)—Passed both houses, but the House of Delegates added a clause requiring its reenactment in the 2021 Session before it could become effective. As reported by the Daily Press, the House members expressed their concerns about the possible costs resulting from implementation and wanted more information. This was a way of killing a bill without actually voting to kill it. Patron Sen. Joe Morrissey, D-Richmond, will need to start over (for a third time) in the next session. (See more discussion of this issue here.)

Chokeholds (HB 5069)—As introduced, this bill would have made it a Class 6 felony for a law-enforcement officer to use a chokehold. The Senate amended it to prohibit the use of chokeholds unless their use were immediately necessary to protect the law-enforcement officer or another person. It also got rid of the criminal penalty and provided that any officer violating the statute would be subject to a range of administrative disciplinary actions, including decertification. The House accepted the Senate version although the bill’s patron, Del. Jennifer Carrol Foy of Prince William, was very unhappy with it.

Intervention (HB 5029)—This is another instance in which the Senate moderated the House approach. The original bill would have required a law-enforcement officer to intervene if she witnessed another officer engaging in unlawful use of force. Failure to do would be a criminal offense, ranging from a Class 1 misdemeanor to a Class 4 felony, depending on the circumstances. The Senate removed the possible criminal penalties and made the failure to intervene subject to a range of disciplinary actions, including decertification.

Decertification (HB 5051)—This bill would expand the grounds for decertification of a law-enforcement officer to include serious misconduct as defined in statewide professional standards of conduct to be adopted by the Criminal Justice Services Board.

Except for the decertification bill, Republicans were largely united in opposition to these bills.

The two houses are still in disagreement over several major issues, including no-knock warrants, citizen review boards, and Marcus alert programs.

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20 responses to “Yes, the General Assembly is Still in Special Session

  1. The House still collecting those per diem payments while they work from their basements in their pajamas? Disgraceful.

    • Agreed. My back of the envelope calculation says that the House per diem cost taxpayers about $700-900K. They puttered with issues totally unrelated to the reason for the special session, adjusting the budget in light of Covid. It took them seven weeks to finally getting around to passing a budget, which the governor now threatens to upend. This demonstrates one more reason why it’s best to keep them out of Richmond and out illegal electronic sessions.

  2. Dick:

    The media coverage of the chokehold discussion has been very disappointing.

    In 2011, the General Assembly adopted a statute making strangulation a Class 6 felony:

    § 18.2-51.6. Strangulation of another; penalty.
    Any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and UNLAWFULLY applying pressure to the neck of such person resulting in the wounding or bodily injury of such person is guilty of strangulation, a Class 6 felony.

    Commonwealth’s Attorneys have historically taken the position this statute cannot be used to prosecute law enforcement officers (LEO’s) because they have to use force to arrest people from time-to-time and the use of that force is LAWFUL.

    SB5030 says that LEO’s cannot use chokeholds unless they are defending the life of the LEO or another person. Therefore, any other use of a chokehold is UNLAWFUL and therefore an LEO can now be charged with strangulation.

    JCF’s bill – while it doesn’t specifically say it – is subject to the affirmative defense of self defense and defense of others like every other criminal charge – Murder, Maliciuos Wounding, Assault & Battery, etc.

    There is no difference. This was simply a disagreement between lawyers about the correct way to draft a Class 6 Felony chokehold ban. The proposed Senate bill makes chokeholds subject to a Class 6 Felony.

    • It seems to me that any wrestling match between a LEO and a suspect would automatically imply that the LEO is defending his or her own life because the LEO is carrying a loaded handgun.

      • Uh yeah, but these strangulation deaths rarely involve a LEO. It’s always four or five and the one suspect.

        A one-on-one is a suspect who gets drilled a couple of times, more often than not, in the back.

    • Senator, thanks for the clarification. It looks as if I should have been listening to the committee and floor discussions. It seems that this proposal would have been a lot cleaner, at least to the public, if the bill had just amended Sec. 18.2-51.6 to make it explicit that it applied to law enforcement officers except in certain circumstances.

      The legislative history of this is that the GA chose not to make chokeholds a felony, but subject to administrative discipline only. Why would CA’s now be more willing to charge them with strangluation?

    • Define wounding. Are we dealing with a John Yoo “it ain’t torture unless it breaks a bone” kinda of definition? Because it sure sounds like the CAs have taken the “can’t indict a sitting President immunity” to the LEOs.

      Any force applied to an unconscious person just has to be excessive.

      • Nancy – Most judges find that red marks, scratches, or other bruising on the neck = wound or injury.

        • Excellent. Because the difference between properly rendering a person unconscious with a chokehold and strangulation is 2 minutes and 40 seconds. The difference between trying to subdue and commiting a murder is, coincidentally, 2 minutes and 40 seconds. If after 20 seconds, the victim is still struggling, it’s because he dying.

          That’s a long time to have your arm around someone’s neck. Saddam Hussein dangled for the full 3 minutes.

  3. I predict that within the next two years they will try to get full-time pay for themselves.

    • Unfortunately, I too fear that this “long parliament” special session (now longer than the official odd-year “short session” due to start in January) is a step toward year-round, never fully adjourned General Assembly’s going forward. And that would mean full time salaries for members and staff, and a greater disconnect with the real world of work (most now do have real jobs, too.)

      • I’ve always been mystified by the full time cost argument. What would we have to pay a full time legislator? $100,000 salary + $50,000 in benefits? So, $150,000 * 140 = $21,000,000. I don’t want to scoff at $21M but our state annual budget is $65B, no?

        I get the point about “citizen legislators” but it seems that a lot of our General Assembly members don’t actually have that full time job to go with their GA responsibility. Sen Surovell is an attorney so that obviously doesn’t apply to him.

        My concern is that I’ve been told a lot of GA members get much of their information from lobbyists since they don’t devote full time to the legislative job and they have to work another job most of the year. They also have very small office staff budgets. So the lobbyists are “ready to help”.

        I’d suggest giving each GA member enough money to hire a talented legislative aide / researcher to work full time. US Congressmen and Senators have staffs of between 14 and 34 people! How can we expect our legislators to operate with almost nothing? No wonder lobbyists pull so many strings.

        • Your point about GA representatives “learning” about issues from lobbyists is a good one. I like your idea of allowing them to hire a full time aide/assistant – but I still want the legislature to remain part-time.

    • Dick:

      If you look at SB5030, you’ll see we’re creating a new statute that defines when police can use chokeholds, shoot at cars, and use deadly force. If the officer violates that statute, then 18.2-51.6 kicks in because the strangulation would be “unlawful.”

      Our DLS Counsel, independent counsel, and the members of the committee thought that was the cleanest way to address it where we could still benefit from prior case law and create the last uncertainty for future situations.

      Scott S.

      • Then the defendant could be charged with violating two statutes, 18.2-51.6 and the new section. This would be another example of a practice that causes me concern–multiple charges for one incident.

        • No. The Senate approach was to create a statutory ban that serves two purposes: (1) it provides the basis for a decertification proceeding and (2) eliminates the unlawful force defense to a strangulation charge. It is NOT the basis for an independent felony.

          The House approach was to just create a new independent felony that could be charged in addition to Felony Strangulation.

  4. I’m not interested. If we go full-time, I’m not sure if I’d stick around. I like practicing law.

    • And that’s a problem, sir. If the GA goes full-time we’ll lose most, if not all, of the “citizen representatives” like you and be overrun with professional politicians.

      • Professional politicians is an oxymoron… or redundant. I haven’t decided. I mean compared to ” professions” they behave unprofessionally.

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