Plugging “Mercy” into the Judicial System

O. Randolph Rollins, founder of Drive to Work.

Just when it looked like the country was so locked in partisan gridlock that no one could agree about anything, along came the Republican-dominated General Assembly, the Democratic governor, and the Virginia Supreme Court to put into place reforms that make it easier for people owing court fines to keep their drivers licenses and continue driving to work.

More than 600,000 Virginians have had their drivers’ licenses suspended for failure to pay court fines, and nearly 200,000 have had them suspended for drug offenses unrelated to driving. The penalties, which arose from war-against-drugs legislation in the 1980s, trapped people in a cycle of poverty. But over the past decade, the unintended consequences have grown too big to ignore.

As House Speaker William H. Howell described it during a panel discussion at the annual banquet of the Drive to Work non-profit Monday, the suspension of drivers licenses for failure to pay court costs is reminiscent of 18th-century debtor’s prison. If someone can’t pay his court debts, he can’t drive. If he can’t drive, he can’t work. If he can’t work, he can’t pay his court fines. And if he gets caught driving repeatedly with an unsuspended license, he goes to jail… where he can’t work or repay fines.

As it became increasingly clear that the license-suspension penalty was adding immeasurably to the hardship of poor Virginians — an awareness raised largely by the Drive to Work program — a bipartisan consensus emerged that the system needed to change. After picking at the edges of the problem for several years, the General Assembly passed six bills in the 2017 session addressing the drive-to-work issue.

Perhaps the most significant reform was the measure that gives judges more leeway to consider an individual’s circumstances before suspending his or her driver’s license. A law enacted in 2015 conveyed a policy message to the judiciary that they should apply the law more flexibility, but provided few specifics. The Judicial Council, which is charged with overseeing the rules and procedures of Virginia’s judicial system, issued guidelines to local judges on how to apply the law. In 2016, the chief justice of the Supreme Court appointed a panel to devise “rules of law” that carried greater weight than the guidelines. Early this year, Del. Manoli Loupassi, R-Richmond, introduced a bill that would embed the rules of court into state statute.

Speaking in the panel discussion, Loupassi described how he thought his bill had “zero percent” chance of passing until Governor Terry McAuliffe and Secretary of Public Safety Brian Moran made it an issue. Before he knew it, other key legislators fell in line. “It’s a great thing,” he said. “There is something inherently good and positive about people working.”

Associate Supreme Court Justice William C. Mims praised the bipartisan nature of the legislation. The reforms have occurred the right way, he said. They weren’t imposed by judicial decree but emerged organically from the interaction between the General Assembly, the Supreme Court and the McAuliffe administration, which added a key provision to the bill.

“The system worked, and it worked for all the right reasons,” he told Bacon’s Rebellion. The courts “plugged mercy into the equation.”

Related laws enacted this year created a uniform set of standards for people with suspended licenses to repay their court fees, and gave judges more discretion not to suspend the driver’s license of some one convicted of a first-time marijuana possess in offenses unrelated to their driving.

In a keynote speech, McAuliffe framed the drive-to-work initiatives as part of a larger effort to make it easier for felons to return to productive lives after their release from prison. He cited other programs such as transferring youths from central state-run facilities to locally based programs near their homes, cutting the cost for prisoners to make phone calls and maintain contact with family members, and starting programs that help felons get their state ID cards and drivers’ licenses before their release from prison. It’s no accident, he added, that Virginia has the lowest recidivism rate in the country.

“We want everyone back in society,” he said. “We want to help their re-entry. We want them providing for their families, and paying taxes.”

While great progress has been made, O Randolph Rollins, founder of Drive to Work, said more remains to be done. Looking ahead, he wants to decouple drug convictions from the loss of driving privileges. The law enacted in the 2017 session, which relaxed the penalty for marijuana possession, was a “baby step” in the right direction, he told Bacon’s Rebellion. He wants to break the link between all drugs — even including cocaine, heroin and meth — and driving privileges.

Roughly 185,000 Virginians have had their licenses suspended for drug offenses, he said. Only about 1,000 of those offenses were tied to driving, such as driving under the influence of drugs. If lawmakers want to put drug abusers in jail or go to treatment, that’s a different debate. But it makes no sense to take away their right to drive, he said. Taking away their license does little to deter them from abusing drugs. But it does interfere with their ability to make a living and support a family.

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13 responses to “Plugging “Mercy” into the Judicial System

  1. re: ” Just when it looked like the country was so locked in partisan gridlock that no one could agree about anything, along came the Republican-dominated General Assembly, the Democratic governor, and the Virginia Supreme Court to put into place reforms that make it easier for people owing court fines to keep their drivers licenses and continue driving to work.”

    Well.. not exactly… they were forced to do it.. it was not a “come together” type deal… The GOP has had decades to fix it and chose not to – Virginia was one of the few states that still refused to fix the law.

    PALEEZE don’t be giving credit to those feckless GOP fools in Richmond when they don’t deserve it!

    ” RICHMOND, Va. — The U.S. Department of Justice sided with a lawsuit filed in July on behalf of low-income drivers, which challenged the Commonwealth’s practice of suspending the driver’s license of people who can’t afford court costs and fines.

    Plaintiffs alleged that state officials “unconstitutionally deprive people of this important interest by automatically suspending the driver’s licenses of those who fail to pay court fines or fees, without providing adequate process and without assessing whether the failure to pay was willful or the result of a defendant’s inability to pay.”

    The Department of Justice agreed that the practice did violate due process in a brief.

    “…The practice of automatically suspending an indigent person’s driver’s license for failure to pay money owed to a court without adequate consideration of the person’s ability to pay violates the Fourteenth Amendment,” the DOJ wrote in the brief.

    The DOJ said an automatic suspension of driver’s licenses for failure to pay fines or fees does not advance a state’s inherent interest in promoting public safety, nor is it an effective means of achieving the identified purpose of this practice, namely compelling “future compliance with a court order.”

    sorry – no Kumbaya and it’s pretty certain if McAuliffe had taken this to the GOP to work together on – they would have ignored him -per their practice during his whole term. I know of not one time when the GOP willingly worked with McAuiffe to do anything…….

    they basically had no choice but to follow the Courts direction…

    McAuliffe just decided to get in front of the Parade then the GOP couldn’t have him taking sole credit… and joined him…

  2. The 2017 session mainly put into the code some rules which had already been adopted by the Supreme Court. There will now be some uniformity for payment plans, and yes some leeway if the judges want to take it up, and I think they extended the time to pay before license suspension from 30 days to 90 days. There were a couple of other changes. But people who do not pay still ultimately face license suspension, as I recall. There were some bills very friendly to the debtors which did not pass.

    Time will tell but I suspect in years to come there will still be many people who do not pay even after they get that suspension notice, and despite a fair payment plan, and then start racking up additional charges and fees for driving on a suspended OL.

    As to what Larry is raving about, it has no relationship to how this has unfolded over the past couple of years when I was being paid to watch or lobby on it….I had clients on this so I’m going to limit my remarks. There have been several legislators, many of them Republicans, who have disliked the chaos they were observing. Loupassi in particular has been working on this a long time.

  3. well, let me extract a news article … AGAIN : I’m quoting here , not “raving”..

    (Nov 11, 2016)

    ” DOJ: Virginia drivers license suspension law unconstitutional”

    “The U.S. Department of Justice has chimed in on a Virginia lawsuit seeking to void a state law that automatically suspends drivers licenses over unpaid court costs.

    The practice violates the U.S. Constitution’s due process guarantee, according to U.S. Attorney for the Western District of Virginia John P. Fishwick, who filed a brief in the case this week along with a team of DOJ civil rights lawyers.

    “It is the position of the United States that the suspension of a person’s driver’s license in response to the failure to pay court debt without providing a person with adequate notice and a meaningful opportunity to be heard prior to the suspension constitutes a deprivation of a protected interest without due process in violation of the Fourteenth Amendment,” they argued.

    Procedural changes approved by the state Supreme Court Nov. 1 are meant to address many of the suit’s concerns, but even then the law will remain unconstitutional, according to an attorney who helped bring the suit.

    “Automatically suspending licenses without a hearing and without consideration of ability to pay exacerbates racial and socioeconomic disparities in the incidence of license suspensions, as well as in stops, arrests, and incarceration for driving while suspended,” attorneys for the National Association for the Advancement of Colored People said in its filing.

    Attorney General Mark Herring’s office has defended the law’s constitutionality, though his spokesman has drawn a bright line between defending its legality and its wisdom. In its initial defense filing, Herring’s office focused largely on procedural questions that it said should block the suit, which it called “both procedurally-barred and substantively inadequate.”

    In its response, the Legal Aid Justice Center said the state’s argument, “replicates the indifference to due process and equal protection embodied in the license-for-payment scheme.”

    Gov. Terry McAuliffe has disagreed with the law’s basic tenet, saying he’d prefer an arrangement that allows people to drive to and from work. McAuliffe has not promised legislation to this effect, though. Del. Marcus Simon, a Falls Church Democrat who shows an interest in social justice issues, said this week that legislation may not be filed until the suit runs its course.

    The inability to keep steady employment without a valid drivers license is one of the lawsuit’s central concerns. It quotes a report that found only 15 percent of jobs in the Virginia Beach, Norfolk and Newport News areas were accessible by public transportation in a 90-minute travel window.

    Automatic suspensions stem from a law passed in 1994. People are given notice, through a form, that failure to pay court costs will result in suspension, but hearings aren’t held to determine whether the driver can afford to pay those fines.

    Community service, instead of fines, is technically an option, but the lawsuit states that courts “virtually never” present this option. Payment plans are available, but drivers aren’t always told, and courts rarely approve such plans, the suit states.

    Del. Rob Bell, a key Republican legislator on criminal issues, as well as a defense attorney in and around Charlottesville, said he frequently sees judges offer payment plans. That doesn’t mean it’s consistent practice around the state, he said.

    “We’re working to fix it,” said Bell, pointing to a new rule handed down from the state Supreme Colurt.

    That rule, which will go into effect in lower courts statewide Feb. 1, is “intended to ensure that all courts approve deferred and installment payment plans,” according to a four-page explanation from the court. It states that people who can’t pay court costs, fines or restitution in 30 days must be offered a deferred payment plan or an installment plan with no more than a 20 percent down payment.

    For totals over $500, the down payment can’t top 10 percent, and the rules says courts should “liberally use community service work” as a way to cut fines and costs. It also says that payment plan modifications “shall be granted based on a good faith showing of need” and that if people default they “must have the opportunity to request a new payment plan.”

    Angela Ciolfi, a senior attorney at the Legal Aid Justice Center, said the court deserves “praise and gratitude” for adoption the new rule, which acknowledges that the system is broken. It won’t moot the lawsuit, though.

    “If the rules are implemented in both letter and spirit, they offer potential to stem the tide of drivers entering the license-for-payment pipeline,” Ciolfi said in an email. “However, they do not (and could not) alter the fundamental flaw in the license-for-payment system. … As long as Virginia law automatically suspends licenses for failure — and not just refusal — to pay, it violates the Fourteenth Amendment. ”

    The case is Stinnie v. Holcomb.

    http://www.dailypress.com/news/politics/dp-nws-doj-suspended-licenses-20161110-story.html

    so … have I misunderstood and have gotten it wrong?

    • The main thing you’ve missed is a lawsuit filed is not a lawsuit won. Anybody with the filing fee can bring a suit. And in this case, the people bringing the complaint were working with the people who held the celebratory dinner Bacon attended. So, will they continue to sue the state or claim victory and move on?

  4. http://www.richmond.com/opinion/our-opinion/editorial-va-assembly-takes-two-steps-back-on-driver-s/article_a1affb57-c64a-55c5-82c4-13060311552f.html

    I suspect copies of this editorial were not passed out at the dinner….

    The bills that passed have merit. The payment system will be fairer to the debtor. But many people who do not pay will lose their OL, just like before. Nobody has suggested another penalty for non payment, and without some kind of consequence, how do you make people pay?

    I’m not sure of the status of that case now, in the wake of the action of the Assembly, but some of the complaints might still be valid. The lawsuit did not hasten this outcome, but rather stopped a study commission cold. Pending litigation usually freezes legislation. Absent the lawsuit something still was coming in the 2018 session, because – again – the bill mainly put into the code a payment plan process proposed by the Supreme Court.

  5. So Bacon is claiming that a voluntary meeting of the partisan minds took place and as a result good things are being done for low income people.

    Yet the referenced articles here, mine and yours ” Virginia’s Supreme Court has adopted new rules that can help defendants meet their obligations — primarily by setting up a system so poor individuals can get on payment plans. The General Assembly followed suit, but the measures it passed — Senate Bill 854 and House Bill 2386 — actually take steps in the wrong direction.”

    actually shows a much different story… that not only was there a voluntary partisan agreement to fix it – but instead continued defiance on the part of the GOP legislators in following the directives of the Justice Dept and the Courts.

    It’s takes some chutzpah to show up to take credit for something that you are actually actively seeking to undermine…

    no?

    the funny thing is we keep dinging the poor here in BR for being “unemployed” and having “chaotic families”,, the need for entitlements.. kids failing academics.. etc…

    how many families could stay intact and stable if they can’t keep their jobs – because they could not keep their drivers licenses?

  6. I wasn’t invited to the dinner. I don’t know that any of my clients were there, given their role in this process (collection firms). But I think you are doing some twisting, Larry. Your effort to score cheap partisan points is misplaced.

    There is no directive from any federal agency, just an undecided lawsuit and a filing by the feds taking a side. The state Supreme Court designed some changes to the payment plan and the General Assembly adopted those into the code, seeking to force the various local courts to comply. That was a very positive development. It was in the works before any lawsuit was filed. The period when clerks can try to collect the money, before it is sent out to collection firms, was increased from 30 days to 90 days.

    But unless I missed something (possible) the ultimate sanction for non-payment remains a suspended operator’s license. And I think that remains the case for fines imposed on non-traffic offenses. There were legislators interested in those further steps but the bills failed.

    The mess behind all this is decades old, and at its heart the problem is all these local courts are independent, most had their own unique approach to these cases, not all even accepted payment plans and if debtor solved his problem in County X and then City Y he still had outstanding fines elsewhere. I still think they will still face multiple payment plans in multiple localities. These idiots who drive badly get tickets in lots of places, and then keep driving on that suspended OL. My sympathy for them is limited. They should pay their bills.

    • Actually I was looking at what the DOJ said – and did – as well as the courts. which did order changes – then Virginia worked to undermine the orders procedural and legislatively.

      that’s way different than how Jim was portraying it and that’s what I pointed out. I was not scoring cheap points.. guy.. I was pointing out that it was NOT a voluntary partisan agreement…. by any means…

      The Feds were breathing down Virginia’s neck and viewed it as a violation of the 14th amendment.. and further pointed out that Virginia is one of a few last states to fix the issue – and “independent” courts are that way if they don’t have sufficient legislative edicts.

      I’m not much different than you are on the “sympathy” thing but I do point out that people who have jobs – have more stable lives and tend to need less entitlements.. but yes.. they make dumb lifestyle decisions and mistakes.

      Do we shoot ourselves in our own fiscal foots to show how unsympathetic we are? Somewhere in the middle of this is something more rational that what it is and has been.

      I still stick to my guns on the original comment.. this is not some voluntary partisan agreement to fix something… ..it’s anything but that – and you essentially agree that this has “history”… AND the continuing refusal of the General Assembly to do right…

      You apparently think they are “trying”.. I’m not so generous given the length of time this has been this way and the adverse impact it has had on low income and people of color – AS WELL AS our own fiscal issues in providing entitlements to families that have lost their breadwinner.

      We have more people in prison in this country – than any other country in the world – essentially by having policies like this…

      it’s an ignorant policy that harms all of us.

  7. One more time and then I’m done.

    There is no federal directive that anybody is ignoring. None. There is no federal court decision anybody is ignoring. There was a civil lawsuit brought by the Charlottesville advocates and some federal authority filed a brief on the plaintiff’s side, but that suit has not been decided that I know.

    The state courts came up with some uniform rules on payment plans and the General Assembly put those into state law so all the local courts and clerks can’t just make up their own rules anymore. The clerks have 90 days to try to collect before an outside collector gets the file (it was 30). The General Assembly acted in good faith to give debtors a fairer system – and judges some leeway – but there remain concerns that absent some kind of penalty, these delinquent fines and fees won’t ever get paid. So efforts to end the license suspension entirely were not successful.

    Despite the talk about “restoring felons” the vast majority of what we are talking about are traffic offenses and other misdemeanors for which nobody is going to jail. With the payment system the law envisions, more people will be able to get on a payment plan they can handle and if you get on a plan and keep current – you get your license back. That is even true if the case has been sent to an outside collector.

    As noted, before the lawsuit was filed the General Assembly had established a study commission and I think that commission might have taken up even deeper reforms. I think the fines are too high. I think the courts layer on too many fees on top of the fines. Some have proposed authorizing settlements for partial payment, which can now be used to settle tax debts and that might work. I think there needs to be a way to consolidate the debts, so the debtor isn’t dealing with multiple courts – but some of these fines are local revenue and the localities lust after their piece of the action. But the study commission never met because of the litigation. The litigation was a tactical error. in my opinion. It didn’t motivate the Assembly, it froze the action of the Assembly.

    People have some easy choices here. First, obey the rules of the road. Second, if you get a ticket, pay attention and start to obey the rules of the road. Third, pay your fine in cash at the door or (and this is the choice that was not uniformly available) work out a payment plan with the clerk. If you have five or ten offenses in three or four jurisdictions, the problem might be YOU. (But Larry thinks its the GOP’s fault.)

  8. I think it’s good policy to allow people with unpaid fines, etc. to be able to drive to work and for other critical purposes, such as taking a child to a doctor. There may be a point, as Steve suggests, when the person is just a scofflaw with so many violations that keeping him/her off the road is in the public interest. But most people deserve another chance, albeit with limits.

    As far as the DoJ is concerned, Obama’s administration produced the most politicized Department in history. While I appreciate creative legal work, it must be within the framework of the law. Holder’s positions were often little more than identity politics on steroids. Intervening in a case or filing an amicus brief doesn’t mean the suit has any merit. It simply presents additional views.

    Filing a lawsuit when a governmental body is working on an issue is not good strategy. It’s poking a finger in the eye, similar to what Trump did on players kneeling. Dumb.

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