Category Archives: Courts and law

Business As Usual in the Old Dominion: Gridlock, Greed and Confusion

After LaHood report, more squabbling over Metro’s future. In the wake of recommendations by former Transportation Secretary Ray LaHood, Virginia, Maryland and Washington, D.C., are edging toward compromises that would reform the ailing mass transit system’s governance system and shore up its financing. LaHood’s proposal to shrink the Metro board from six seats to five is drawing some bipartisan support, and legislation in Congress is being drafted, reports the Washington Post. But suburban jurisdictions in Virginia and Maryland, worried about losing their voice on the board, are unhappy with the plan. Also, while LaHood affirmed the need for an additional $500 million a year to work down a massive maintenance backlog, he did not propose how that massive sum might be funded — mainly because there is no consensus for a regional sales tax, the main proposal on the table. Also unaddressed is the not-insignificant matter that Metro really needs an additional $1.5 billion a year, not $500 million, to fix its problems.

Good business if you can get it. (Alternative headline: First, kill all the lawyers.) Richmond has emerged as the preferred venue for bankruptcy trials, reports the New York Times. Toys “R” Us, Gymboree, a West Virginia coal company, and a Pennsylvania fracking company all have filed in the U.S. Bankruptcy Court there. The federal district court’s so-called rocket docket resolves cases swiftly. Also, precedents in the court’s legal record make it easier for companies to walk away from union contracts. But perhaps the biggest draw is the ability of bankruptcy lawyers to charge outrageous fees — as much as $1,745 per hour. Lawyers advising troubled companies, writes the newspaper, tend to gravitate toward courts that approve higher fees.

Dazed and confused — but mostly confused. A state review of the police response to the chaotic white nationalist protest in Charlottesville in August describes a confused command structure, a breakdown in communication, and uncertainty among officers about the “rules of engagement” with protesters, reports the Richmond Times-Dispatch. The review, led by James W. Baker, a consultant with the International Association of Chiefs of Police, did not address whether or not police were ordered to “stand down” in the face of escalating violence between white supremacists and leftists. Nor did it assign responsibility for the confusion to anyone in the Charlottesville city administration.

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.

Supremes Say General Assembly Can Order Electric Rate Freeze

Virginia Supreme Court Justice Elizabeth A. McClanahan.

In a six to one ruling, the Virginia Supreme Court ruled that the General Assembly does possess the right under the state constitution to put limits on the State Corporation Commission’s ability to regulate electric utilities. As a practical matter, that means that the multi-year freeze in base electric rates for Appalachian Power Company and Dominion Energy Virginia will stay in effect.

The Old Dominion Committee for Fair Electric rates, representing major industrial customers, the VML/VACO APCO Steering Committee, representing local government, and Karen E. Torrent, a Dominion customer, had challenged the freeze, which they claim lock in electric rates at levels that otherwise would have required potentially hundreds of millions of dollars to customers.

While giving the General Assembly “wide latitude to determine the standards” that must be used in setting rates, argued the Old Dominion lawsuit, “The Constitution reserves for the Commission — and the Commission alone — the power to set electric utility rates.

By suspending biennial reviews and prohibiting the Commission from changing base rates (except at the utility’s request, on a temporary basis,” the plaintiffs argued, state code “unconstitutionally ‘fixes the base rates that a utility will charge its customers for a period well into the future, and deprives the Commission of any power to reduce or otherwise regulate those rates.”

In an opinion written by Justice Elizabeth A. McClanahan, however, the court majority upheld the General Assembly’s primacy over the SCC. Under the 1902 Constitution of Virginia, the SCC did not enjoy constitutional authority to set rates — authority was bequeathed by the General Assembly. The 1971 constitution did provide constitutional authority to the SCC, but “subject to such criteria and other requirements as may be prescribed by law.”

The General Assembly has limited the SCC rate-setting authority at least twice before the 2015 rate freeze. In 1999, in enacting the Virginia Electric Utility Restructuring Act to introduce competition among providers of electric generation, the legislature capped base rates for electric utilities for seven years. In 2007 when the General Assembly ended the deregulation program, lawmakers required a rate hearing every two years and prescribed that the SCC could not order a rate reduction unless it found that the utility had excess earnings in two consecutive biennial reviews.

“We have repeatedly stated in other cases since the passage of the 1971 Constitution of Virginia that the Commission’s authority to regulate the rates of electric companies has been ‘delegated’ to it by the General Assembly under various legislative enactments,” McClanahan wrote.

Justice William C. Mims wrote a dissenting opinion: “I reject the premise that the rate-making authority granted to the Constitution is subordinate to the General Assembly.” The majority was wrong in this case, and it was wrong in previous cases when it upheld the same principle, he declared. “The General Assembly may impose standards and prerequisites the Commission must adhere to when exercising its power and duty to set rates. It does not mean that the General Assembly may suspend that power and duty.”

Demanding Truth from Those in Power

Terry McAuliffe speaking to CBS News. Who’s telling the truth — the governor or the state police spokesperson?

The national media rightfully calls out President Trump for making outrageous statements such as his infamous line that there were “some very fine people on both sides” of the deadly confrontation in Charlottesville Saturday. Really?

I know that there were some “very fine” people among the peaceful counter-protesters in Charlottesville — one, a gentle and peaceful woman, was a friend who conducted my daughter’s wedding ceremony and also led a family prayer wishing me a speedy recovery from my hip replacement surgery. (If there is a God, it appears that the Big Guy listened. My recovery is going splendidly.) Would the president care to enumerate the “very fine” people among the Nazis, Klansmen and affiliated white supremacists who traveled from around the country to participate in an event designed to stir up trouble? He can’t name any. He deserves the lambasting he’s received for making such a statement.

The question here in the Old Dominion is, will Virginia’s media call out Governor Terry McAuliffe for making unsubstantiated (though less emotionally charged) statements, the likes of which, had they issued from the mouth of Donald Trump, would be branded immediately as lies?

C.J. Ciaramella with the Reason Foundation’s  Hit & Run blog writes the following:

In an interview Monday on the Pod Save the People podcast, hosted by Black Lives Matter activist DeRay Mckesson, McAuliffe claimed the white nationalists who streamed into Charlottesville that weekend hid weapons throughout the town.

“They had battering rams and we had picked up different weapons that they had stashed around the city,” McAuliffe told Mckesson.

The Virginia State Police also disputed McAuliffe’s claims that Virginia State Police were underequipped to deal with the heavily armed militia members at Saturday’s rally.

“The governor was referencing the weapons and tactical gear the members of various groups attending the rally had on their persons,” Geller says. “I can assure you that the Virginia State Police personnel were equipped with more-than-adequate specialized tactical and protective gear for the purpose of fulfilling their duties to serve and protect those in attendance of the August 12 event in Charlottesville.”

McAuliffe claimed in an interview with The New York Times that law enforcement arrived to find a line of militia members who “had better equipment than our State Police had.” In longer comments that were later edited out of the Times‘ story, McAuliffe said that up to 80 percent of the rally attendees were carrying semi-automatic weapons. “You saw the militia walking down the street, you would have thought they were an army,” he said.

That’s Ciaramella’s framing of the issue. The Reason Foundation, a Libertarian organization, is a credible group and certainly no apologist for Nazis and Klansmen or their white-identity politics. Assuming this is a fair summary of the facts, someone needs to dig to the bottom of these conflicting statements. Who gave the accurate accounting — McAuliffe or the Virginia State Police spokesperson? If McAuliffe misspoke, will anyone call him on it?

These questions are part of a larger issue that Virginia’s media have been tip-toeing around. Did the Charlottesville police and State Police bungle the handling of the Saturday demonstration? According to some reports, when clearing the demonstration area at McIntire Park, the police herded the white supremacists into close proximity to the counter-protesters, and that’s when the worst melees broke out. Of course, anyone can claim anything. But do we have a clear idea from authoritative sources what did happen? Do we know who made the command decisions? I’ve seen a lot of ass-covering statements, but no systematic sorting of the facts. Are Virginia’s media interested in finding out, or are they satisfied with the narrative concocted by the national media? 

Here’s one reason people will want answers in the future, even if they are not clamoring for them right now. The Alt Right is developing a line of argumentation that James Allen Fields, driver of the car that killed Heather Heyer, undoubtedly will adopt in his defense. Fields, they say, was driving around disoriented in a strange town when he was set upon by Lefties. He accelerated his car to escape them, accidentally plowing into the crowd, put on his brakes when he realized what was happening. Within seconds (and this is viewable on videotape), armed counter-protesters swarmed the vehicle, struck the car with sticks and clubs, and bashed in the rear window. Panicking, Fields threw the car into reverse, toppling attackers like bowling pins.

Please note, I am not making this argument, I’m not excusing Fields, I’m not blaming the counter-protesters, and I’m not engaging in moral equivalency. I’m noting arguments circulated on the Internet that will likely preview Field’s defense. In what is shaping up to be Charlottesville’s trial of the century, Field’s attorneys assuredly will try to shift the blame to others. Besides blaming the counter-protesters, they will blame city and state authorities for making the decisions that unleashed the chaos and precipitated the chain of events leading to the car killing.

It won’t help the cause of justice if McAuliffe is caught making stuff up.

In closing, let me reiterate that I’m not defending white supremacists. Nazis are evil. Klansmen are evil. White supremacists are evil. They picked Charlottesville, Charlottesville didn’t pick them. They spewed hatred and vitriol. They came prepared for violence, and they dished it out. They deserve the full punishment of the law. I wish they had never come to Virginia, and I hope they all go home and never come back. But McAuliffe, who didn’t have a credibility problem before, might have one now.

About Those School-to-Prison Pipeline Numbers…

Gerard Lawson

Two years ago the Center for Public Integrity (CPI) released a study reporting that Virginia led the nation in sending students from schools — 16 out or 1,000 — to police or the courts. That finding fueled demands to overhaul k-12 disciplinary practices to reduce the so-called “school-to-prison pipeline.”

Well, it turns out that those numbers were wildly inflated.

“When we look at the official Juvenile Justice records to see who actually went to court from the schools, the number is actually 2.4 per 1,000,” says Gerard Lawson, an associate professor at Virginia Tech’s school of education.

Lawson and his colleagues conducted the research to find what factors led to student involvement in the pipeline and how those factors could be mitigated, according to a Virginia Tech news story. Here’s what they found:

The researchers launched the study in January 2016, drawing data from several state agencies, including the departments of Juvenile Justice, Education, and Criminal Justice Services.

“At the very outset we realized the numbers weren’t matching up,” said Lawson, who is also president-elect of the American Counseling Association. “We scoured the data between the Departments of Education and Juvenile Justice, matching localities, dates of birth, dates of offensives, types of offenses, and we realized that the number of students actually ending up in court was much lower than that first impression.”

There is a checkbox on a Department of Education tool gathering data about suspensions and expulsions which asked, “Was this reported to law enforcement?”

“In most cases, when the box was checked, it appears that it represented an informal report to law enforcement — an administrator running into the school resource officer in the hallway, for example, and mentioning that a student had been suspended.” Lawson said. “The ‘report’ may have gone no further than the officer responding, ‘Thanks—good to know.’ With a bit of semantic imprecision, that checkbox elevated Virginia’s numbers dramatically.”

However, Lawson’s study did confirm two trends highlighted by the CPI study: students with disabilities were more likely to be suspended, and African-Americans, representing 23% of the student population in Virginia, accounted for 49.4% of the court referrals.

“We need to rethink discipline,” says Lawson. “Should a middle-schooler get arrested for flipping the bird at a teacher? The stakes are too high. A single suspension makes it less likely for a student to graduate from high school, and involvement with the Court system makes that less likely still. The repercussions can be lifelong.”

Bacon’s bottom line: Lawson should be commended for debunking the misinformation that Virginia is an outlier in the realm of school discipline. I always wondered about that claim — I never heard a logical explanation of why Virginia school officials supposedly referred so many more kids to law enforcement than their peers in other states. But when I wrote about the CPI research, I never thought to dispute it. Now we know why the numbers were so high.

However, I have to question one of Lawson’s insinuations. Middle-schoolers have been arrested for flipping the bird to their teachers? Really? If true, such actions are absolutely outrageous, and disciplinary procedures do need reform. But my “spidey sense” makes me suspicious. It would take a judge about two nano-seconds’ reflection to throw that out of court. I find it hard to believe that such a thing has ever happened. Perhaps Lawson was just using hyperbolic rhetoric, not to be taken literally. Or perhaps I’m just naive.

Returning to the main storyline… Let’s play a little parlor game, shall we? How much media attention will Lawson’s story get compared to the the Center for Public Integrity’s flawed report? Will the Center for Public Integrity ever correct its findings?

Update: The editors of the Center for Public Integrity offer an extended rebuttal of Lawson’s findings (and Bacon’s Rebellion’s reporting of those findings). You can read their comment here.

Update: Gerard Lawson has responded to my question about “flipping the bird,” defends his contention that it is very difficult to rank the states for law-enforcement referrals, and offers other observations. Read his comment here.

Virginia Needs a New Constitution, Part 2

1901 constitution flyer

by Donald J. Rippert

The Commonwealth’s Cornucopia of Constitutions. Virginia has written, scrapped and rewritten its state constitution many times. Virginia is presently operating under its seventh constitution. While that seems striking compared to the U.S. Constitution, it’s not that unusual for a state constitution. Florida and Pennsylvania have had five constitutions, South Carolina six, Georgia nine and Louisiana a whopping eleven different constitutions. Of the original 13 colonies only Massachusetts has yet to perform a constitutional rewrite.

The Spirit of ’76. Virginia’s first constitution was written in 1776. George Mason and James Madison are seen as primary authors. After the obligatory heckling of King George III the constitution got down to the basics of defining the state government – bicameral legislature, governor and so on. The accompanying Virginia Declaration of Rights was a strong point of this first constitution. That document would effectively become the predecessor to the U.S. Bill of Rights. Unfortunately, elitism has been a constant companion to Virginia politics and this constitution was no exception. Voting was reserved for owners of substantial property and men of wealth. The landowners of Southeastern Virginia would be in control of the state.

East vs West – 1830. By the 1820s Virginia was (predictably) one of only two states that restricted voting to landowners. The state constitutional convention of 1829 to 1830 tried to address this distorted concentration of power in the landed gentry. Suffrage requirements were reduced but not enough to address the concerns of the small farmers in the western parts of the state. Virginia kicked the can down the road.

The Reform Constitution, 1851. As the population of western Virginia continued to grow, the Richmond-to-Norfolk “corridor of evil” vainly tried to maintain control of the state through voting rights that required substantial property ownership and a bizarre county-based representation system. Talk from the west of abolishing slavery and / or secession from the state forced the eastern elites to change. The new constitution gave the vote to all white men of voting age and called for election of the governor, the lieutenant governor and all judges by popular vote.

Wartime Constitution, 1864. After years of political abuse by Virginia’s southeastern elite, a number of the counties in the western and northern part of the state decided they would not follow the Richmond-centric rebels into what can only be called an apocalyptic Civil War. The Constitution of 1864 could effectively be called the first state constitution for West Virginia. What remained of Virginia was too busy marching toward utter destruction and unconditional surrender to bother with constitutional niceties.

The Carpetbagger Constitution, 1870. The provisions of The South’s surrender included military occupation of states like Virginia. Given that slavery had been abolished the military commander of Virginia called for a constitutional convention to memorialize America’s new reality. However, the Richmond-based elite would have none of it. Many of the white conservative Virginians who developed the bright idea of a failed secession from the United States now refused to vote for delegates to the constitutional convention. This led the way for a Republican led convention headed by John C. Underwood. In what should come as a surprise to nobody, the “elite free” convention wrote one of Virginia’s best constitutions. The new constitution granted suffrage to all males over 21, established a public school system with mandatory funding and ended the disenfranchisement of former Confederate government members.

The Empire Strikes Back, 1902. Virginia’s short period of competent government was ended as the Democratic Party retook the state legislature. The usual band of elitists called for another constitution to be written. It was a doozy. Poll taxes and literacy tests were included to effectively remove African Americans from the voting booth. Segregation became the law of the land. Power was aggrandized in Richmond with the elimination of the county court system. The State Corporation Commission gave added weight to the centralized government. Since African Americans still could vote based on the 1870 Constitution The Imperial Clown Show in Richmond decided to pass this abomination without a popular vote. This was both Virginia’s worst constitution and its longest-lived.

Do we have to? 1971. While Virginia’s political elite moved smoothly from poll taxes to literacy tests to segregation to massive resistance, the rest of the country progressed. Mounting federal pressure in the form of U.S. Supreme Court decisions like Brown v. Board of Education and legislation like the Voting Rights Act of 1965 made it harder and harder for Virginia’s elite to persecute a large percentage of Virginia’s population. A new constitution was needed. The most heinous racist provisions of the 1901 Constitution were removed and Governor Mills Goodwin managed to convince the delegates to drop the “pay go” policy that had infected prior constitutions. However, the aggrandizement of power in Richmond generally and the General Assembly in particular remained.

The history of Virginia’s constitutions has been the story of a small elite eschewing true democracy in a sad effort to keep the lives of many under the thumbs of a few. To date, progress in Virginia has only come from the barrel of a gun (1870) or the threat of federal action (1971). The present state constitution continues to thwart democracy albeit more subtly than was the case with the 1902 travesty.

In the next section of this series the many flaws of Virginia’s existing constitution will be examined.

Jury Pool Reject

Yippee! I was struck from the Henrico County jury today, and I’m back to blogging. I was fully prepared to participate in the three-day jury trial of a man charged with heroin distribution, but someone — I’m betting it was the defense attorney — gave me the heave-ho.

I don’t know the reason, but I’m guessing it may be connected to when the prosecuting attorney, upon learning that I published a blog, asked me of my political leanings. I replied that I was a fiscal and free-market conservative. But conceivably, the defense attorney deemed it a mark against me when he asked if I regularly read the Metro section of the Richmond Times-Dispatch, and I replied that I had. Maybe it was the combination of the two — uh, oh, we’ve got a conservative, 64-year-old white guy here who faithfully reads the crime stories in the local newspaper!

What defense attorney in the world would want me on the jury?

This is only the second time in my life that I’d been called for jury duty, and it was interesting to view the process of jury selection from the inside. The jurors represented a broad cross-section of Henrico County society in terms of race/ethnicity, although the panel probably skewed to older citizens and middle-class occupations — no derelicts in this group. That may have something to do with the fact that felons are excluded from the jury pool.

When asked if any of us, or any of our close relatives, had been the victim of a crime. one woman said her father had been murdered, and one fellow said two of his friends had died of heroin overdoses. Another woman owned up to having worked for the Drug Enforcement Agency, although in an HR capacity. Needless to say, all three were struck.

After getting a look at the defendant — he looked somewhat elderly, with a scruffy, gray-white beard, not like the stereotypical street thug — I’ll be curious to know what happens to him. Maybe I can read about it in the Times-Dispatch.

Virginia Needs a New Constitution, Part 1

by Donald J. Rippert

Carved in stone.  America’s elite and their lap dogs within our political structure know that larceny is best accomplished within a vacuum of change. If the “little people” in a democracy ever figure out that they can force the politicians to change the laws then the elite find crony capitalism far more difficult to practice. For example, big money in politics favors the elite (who have the money). It also favors their political puppets who know they are better able to remain “politicians for life” if raising gobs of money remains more important than solving problems. So, the question of the excessive influence of money in American politics is simply answered with two words, “Citizens United.”  The U.S. Supreme Court found it unconstitutional to restrict money in politics, ergo it can’t be done. But, of course, it can be done. The U.S. Constitution can be amended. Yet as Americans across the political spectrum vent their rage against the influence of George Soros and the Koch Brothers nothing is done. Why?

The Big Lie. America’s political insiders have convinced many of us that the U.S. Constitution is, effectively, inviolate. The right tells us that the Constitution is the product of divine inspiration written by human hands. The left relies on stasis and judicial manipulation of “the living Constitution” to let unelected judges perform the duties that our elected representatives stubbornly refuse to undertake. The net result of this conspiracy between America’s vested interests and its political class is a polarized nation where economic stagnation is the order of the day for an ever increasing percentage of its people. Yet no matter how fundamental our problems become, the case for fundamental change is blocked by a bizarre belief that the U.S. Constitution cannot be changed.

Erasing history. One of the more insipid approaches taken to ossify the U.S. Constitution is to rely on the ignorance of many Americans by insisting that the framers knew they had created a near perfect document and, therefore, made it very hard to change. The fact that the framers wrote the first ten amendments before the ink dried on the U.S. Constitution somehow doesn’t dispel this recounting of history. Thomas Jefferson provides an interesting perspective both from his vantage as a founding father and from the long life he led after the American Revolution. Jefferson had the chance to observe the Constitution’s effect on America for decades after its ratification. In a letter to Samuel Kercheval in 1816 Jefferson had this to say:

“But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.

And lastly, let us provide in our constitution for its revision at stated periods. What these periods should be, nature herself indicates.”

 Jefferson knew the Constitution was imperfect. After 26 years of seeing the U.S. Constitution in action he was contemplating the merits of scheduled revisions.

Sic Semper Tyrannosaurus. Virginia has a much different constitutional history than the United States. The State Constitution of Virginia has been rewritten six times since it was first ratified in 1776. Not amended, not revised, rewritten. Much of what has gone into those constitutions was the predictably disgraceful and prejudiced thinking emblematic of Virginia’s political class. However, Jefferson’s home state has proven that it is willing to avoid being trapped under “the regimen of their barbarous ancestors.”

But what of today?  Would Virginia’s current political class consider following the Old Dominion’s longstanding history of “out with the old and in with the new”? Thinking optimistically I suppose that would depend on whether there were enough good ideas to justify yet another rewrite. Thinking pessimistically, our state politicians are as corrupt as their peers in Washington and know full well that mandated unchanging power keeps their political lives long and their personal pockets full.

Just this once, I am going to think optimistically about our current state government.

The remainder of this series will examine why it is time that we throw out the present Virginia constitution in favor of a new one that keeps pace with the times and improves the lot of all of us governed under that constitution.

Protecting Virginia’s Forgotten Constitutional Right

By Elwood Earl “Sandy” Sanders, Jr.

The Constitutional rights of Virginians are in danger every day. No, not the usual suspects like freedom of speech and the right to bear arms, but rather the Sixth Amendment Right to Counsel.

The Commonwealth has a crazy quilt of counties and cities. Many jurisdictions have a public defender office but many do not. In the Richmond metropolitan area, the cities of Richmond and Petersburg have public defenders, but Henrico, Hanover and Chesterfield counties do not. In Northern Virginia, every county and city surrounding Prince William County (and the cities and towns within) has a public defender office, but Prince William does not. Hampton and Newport News do, but York and Gloucester do not. This disparity verges on unequal justice under law.

Many court-appointed bars in the non-indigent-defense counties and cities do a yeoman’s job representing poor individuals accused and convicted of crimes. But public defenders enjoy immense institutional advantages. They have personnel such as sentencing specialists, appellate specialists, investigators and support staff. They mentor the newer lawyers. The training and accountability are more than adequate. The ordinary court-assigned attorney simply does not have these resources available.

These institutional advantages of public defenders over court-appointed attorneys raise serious questions of inequality.

The good news is that the Commonwealth already has the resources to establish a more equal system: The judiciary in 2012 brought in an astounding $280 million more than it spent in expenses and personnel. Now, that may be an indictment of the amount of court costs but the funds are there. The budget just passed this session includes this policy language:

Given the continued concern about providing adequate compensation levels for court-appointed attorneys providing criminal indigent defense in the Commonwealth, the Executive Secretary of the Supreme Court, in conjunction with the Governor, Attorney General, Indigent Defense Commission, representatives of the Indigent Defense Stakeholders Group and Chairmen of the House and Senate Courts of Justice Committees, shall continue to study and evaluate all available options to enhance Virginia’s Indigent Defense System.

Sen. Rosalyn Dance, D-Petersburg, introduced a bill to study a statewide indigent defense system in the 2016 General Assembly. The measure floundered in the Senate Rules Committee until that committee’s chair, Sen. Ryan McDougle, R-Mechanicsville, saved it with an amendment limiting the study to creating a statewide appellate defender’s office. The bill passed the Senate but died in the House. In 2017 session, the bill never made it out of the Senate Committee.

Other states have a statewide public defender system. Colorado is one example of a state with an integrated comprehensive system. There are issues with any delivery of legal services, mostly in attorney workloads, but the budget allocation for Colorado, a state of just over 5.3 million, is $86 million. Virginia’s indigent defense budget is about $46 million. Millions more are spent for court-appointed services, mostly in jurisdictions without a public defender office, and a fee waiver program.

Even if the statewide public defender system cost $120 million per year, the judicial branch could generate that sum without a tax increase. Funds could be drawn from split-recovery for punitive damages, or, to prevent the hint of a conflict, could be diverted from forfeiture to indigent defense services.

I am fully aware that excess funds raised by the judiciary in the Commonwealth are spent in the General Fund by the politicians in Richmond. However, resources to establish the statewide indigent defense system without directly invading the General Fund to do it.

We need to establish a constituency in favor of the Sixth Amendment Rights of every Virginian. I propose a umbrella coalition, primarily on social media and through resolutions of support, of organizations that will make indigent defense a priority. If you favor a right to reproductive freedom, or to own a gun, or to free speech, or to immigrant’s rights, if you are a Tea Partier who believes we should follow the WHOLE Constitution, than you need to join us.

Contact me at the email address below to start an umbrella organization to agitate for a more adequate indigent defense system in the Commonwealth.

Elwood Earl “Sandy” Sanders, Jr., is a licensed attorney in the Commonwealth of Virginia since 1985 and was the first Appellate Defender, conducting appeals for indigents in the Virginia Court of Appeals and Virginia Supreme Court.  He is also a blogger for Virginia Right (www.varight.com) and a political activist from Mechanicsville.  All Sandy’s views are Sandy’s views and no one else’s. You can contact him at ssanders[at]varight.com.

Author Files Suit to Spur Investigation of UVa Admissions

Jeff Thomas delved into UVa admissions practices in his book, 'Virginia Politics & Government in a New Century."

Jeff Thomas delved into UVa admissions practices in his book, ‘Virginia Politics & Government in a New Century.”

Jeff Thomas, author of “Virginia Politics & Government in a New Century: The Price of Power,” has filed a complaint asking the U.S. Attorney’s office for the Western District of Virginia to launch an independent investigation into admissions practices at the University of Virginia. Reports the Cavalier Daily:

Thomas said in an email to The Cavalier Daily he filed the federal complaint because the University and the state government are incapable of independently investigating what he called a “corruption scandal,” which could implicate political donors, legislators and members of the University Board of Visitors.

“If U.Va. will not release the complete, unredacted documents, then an investigating body with subpoena power must compel them to do so,” Thomas said.

Thomas brought public attention to the issue of favoritism in admissions when he passed along documents he obtained though a Freedom of Information Act to the Washington Post. The heavily redacted documents showed that the UVa department of university advancement maintained a “watch list” of applicants of interest to potential donors, and lobbied the president’s office on their behalf. The documents did not indicate whether the president’s office passed along the requests for preferential treatment or how the admissions office might have responded.

University spokesman Anthony de Bruyn said in an email to the Cavalier Daily that the university objects to Thomas’ allegations. “The University remains confident in the integrity of its rigorous admission process. There is no evidence to support this speculation.”

Thomas brushed off the university’s denials: “It is also imperative that U.Va., end this potentially illegal practice immediately and that President Sullivan issue an apology to the many deserving students in Virginia who have been denied admission under her watch because their parents could not or did not contribute money to the University.”

Bacon’s bottom line: Given the evidence I’ve seen, it seems clear that the advancement office sought preferential consideration of rich-kid applicants. The question in my mind is whether the advancement office went through the motions of appealing to the president’s office so they could go back and tell their donors, “Hey, we tried,” or whether advancement officials truly expected the president’s office to intervene. The ultimate question, of course, is whether the admissions office ever caved in to a special request.

When I was publisher of Virginia Business magazine, the sales guys frequently brought me special requests from advertisers asking for preferential editorial treatment. I’d say, “No,” and the sales guys would go back to their clients and say, “We gave it a shot.” Sometimes we’d lose an advertiser, but sometimes the client felt grateful that the sales guys made an effort on their behalf.

That’s the innocent explanation of what’s happening at UVa.

Denials from the university administration are to be expected, however, and no serious journalist would accept its word on the matter without vetting it thoroughly. After all, UVa would be the exception if it didn’t play favorites. On the other hand, while giving preferential treatment to rich kids might be bad optics, it’s not clear from the Cavalier Daily article upon what grounds the practice would be illegal, even if proven to be true. I would be astonished if the U.S. Attorney picked up the case.