Category Archives: Courts and law

Suspended Licenses in Virginia a Social Scourge

Suspended licenses have created a major social problem in Virginia.

Virginia suspended licenses at the rate of 160,000 per year in the first quarter of fiscal 2017. Image credit: novacriminalattorney.com.

In the fiscal year ending June 2015, the Old Dominion suspended licenses of nearly 39,000 Virginians for drug convictions unrelated to driving. The practice is a relic dating back to 1991 and the war on drugs, and all but 12 states have abandoned it.

Suspending licenses for drug possession is just one facet of a widespread abuse, which we have highlighted on this blog, of depriving Virginians of their driving privileges. In just the first quarter of the current fiscal year, 10,900 Virginians lost their licenses for drug-related offenses, 20,700 for failure to pay court fines, and 8,000 for failure to pay child support, reports Frank Green in the Richmond Times-Dispatch today.

The irony of the suspended-licenses policy is that depriving Virginians of their right to drive narrows their options for getting to work and makes it more difficult to maintain the employment they need to pay the fines and child support. Estimates show that nearly three-quarters continue to drive illegally. Many get caught, and their court-related troubles compound. The practice has created a treadmill of indebtedness that keep hundreds of thousands of Virginians trapped in poverty.

A new rule quietly adopted by the Virginia Supreme Court, effective February, will require all courts to offer more flexible terms for paying off court fines.  One option is to pay on a deferred or installment plan. Another is to assign people to community service.

Meanwhile, Sen. Adam P. Ebbin, D-Alexandria, has introduced a bill to the General Assembly that would halt the automatic stripping of drug offenders’ driver’s licenses — contingent upon written assurance from the U.S. Department of Transportation that Virginia would not lose any federal transportation funds. (In 1991, Green explains, Congress had threatened states with the loss of federal highway funds if they did not automatically suspend the licenses of drug offenders.)

Bacon’s bottom line: There is no rational nexus between committing a drug-related crime and having a driver’s license suspended or revoked. Ebbin is right, Virginia should reverse the policy. The appropriate way to punish drug dealers — I’m side-stepping here the debate over whether we should decriminalize marijuana — is through sentencing and parole, not depriving offenders of the means to earn a livelihood.

While Ebbin’s legislation is reasonable, we need to go further. Any system that deprives Virginians of drivers’ licenses for non traffic-related offenses at the rate of 160,000 a year creates an enormous social problem. Virginia’s courts have become an engine of oppression and immiseration, perpetuating poverty. We need to find a better way.

Virginians Should Watch “Loving”

If you haven’t seen “Loving” yet, you need to. The movie tells the story of Mildred and Richard Loving, a white man and “colored” woman living in Caroline County in the 1950s, who married in violation of the law against mixed-race wedlock. Their case famously went to the U.S. Supreme Court, resulting in the dismemberment of anti-miscegenation laws across the country.

While the movie touches upon the legal issues stemming from their predicament, it is first and foremost a love story of two people who build a life and family together. Refraining from overt moralizing, “Loving” is all the more powerful for its understatement. In the most moving scene in the movie, the ACLU attorney asks the laconic Loving if he has any words he wishes to convey to the justices of the Supreme Court. Replies the bricklayer: “Just tell the judges that I love my wife.”

Although the movie portrays a dark page from the Old Dominion’s history, Virginians will appreciate the beautiful photography of the Tidewater countryside and the evocation of a rural community in which whites, blacks and (unmentioned in the movie) Indians mixed socially despite the strictures of segregation.

“Loving” is a beautiful expression of natural libertarianism, the philosophy expressed by the phrase “live and let live.” The Lovings were not social crusaders. Like many Americans, they just wanted to be left alone. It was their misfortune to run afoul of laws designed to maintain the “purity” of the white race. Thankfully, legally enforced segregation is a thing of the past. But, sadly, there is no shortage of social engineers who would harness the power of the state in other ways to impose their values and obsessions upon others.

Great Moments in Virginia Governance: Norfolk Edition

burfoot under indictment for corruptionFrom the Virginian-Pilot: An employee of Norfolk Treasurer Anthony Burfoot testified in U.S. District Court Monday that she waived penalties and fees for local developers at the direction of her boss.

Prosecutors allege that Dwight Etheridge, Tommy Arney, Ronnie Boone Sr. and others paid Burfoot more than $400,000 in kickbacks and bribes between 2005 and early 2011. In exchange, prosecutors say, Burfoot helped, or at least promised to help, their various projects through the city bureaucracy.

The office of Treasurer is not one I think of as influencing development decisions. Treasurers don’t even influence real estate assessments — that’s the job in Virginia of commissioners of revenue. It will be interesting to see, as this trial unfolds, what kind of favors are within the purview of a city or county treasurer to grant. If Burfoot turns out to be guilty, other jurisdictions might think of turning over the same rock to see what kind of nastiness resides beneath.

mccabeUpdate: Oh, brother, now accusations of corruption extend to Norfolk Sheriff Bob McCabe. Quoth the Virginian-Pilot: “Businessman Ronnie Boone Sr. told federal investigators he bribed longtime Sheriff Bob McCabe in addition to Treasurer Anthony Burfoot, according to two sources familiar with the interview.”

The McAuliffe-Clinton Email Nothingburger

andrew_mccabe

Andrew McCabe

by James A. Bacon

So, what do we make of the front-page revelation in today’s Wall Street Journal that Governor Terry McAuliffe, a long-time ally of Bill and Hillary Clinton, gave $475,000 through his Common Good VA PAC to Jill McCabe, a Democratic candidate in 20015 for a Northern Virginia state senate seat, who … was married to Andrew McCabe, then the chief of the FBI’s Washington field office… who later ran the investigation into the Hillary Clinton email scandal?

Trust me, I am not one to minimize the significance of the Clinton email scandal. I believe that former Secretary Clinton set up a personal email server to avoid public scrutiny of the tangled conflicts engendered by the Clinton Foundation and her state department service, that she put national security at risk by transmitting classified documents over that server, that her communications were likely hacked by foreign intelligence services, that she obstructed justice by deleting the infamous 30,000+ “private” emails, and that she should have been prosecuted on multiple accounts. Her actions, lying and cover-up disqualify her from the presidency every bit as much as Donald Trump’s history of predatory groping, kissing and sexual advances disqualify him. (Yes, I am totally disgusted with the choices we have for president this year.)

However, as much as it would satisfy me to see confirmation of my jaundiced view of Clinton and her emails, I don’t think there’s much to the WSJ story. There certainly isn’t anything in the article that discredits McAuliffe.

Here are the facts presented. In a bid to regain Democratic control of the state senate, McAuliffe urged Jill McCabe, a hospital physician, to run against Sen. Dick Black, R-Leesburg, for the 13th senatorial district. McAuliffe’s PAC contributed $475,000 to her campaign, and the Virginia Democratic Party kicked in another $208,000, accounting for about a third of all the funds she raised.

A spokesman for the governor said McAuliffe “supported Jill McCabe because he believes she would be a good state senator. This is a customary practice for Virginia governors. Any insinuation that his support was tied to anything other than his desire to elect candidates who would help pass his agenda is ridiculous.”

McAuliffe met with Mr. and Mrs. McCabe on March 7, 2015 to urge her to run. That is the only time McAuliffe recalls ever meeting the FBI executive. As it happened, Clinton’s use of a private email server was just coming to public light in early March. The FBI announced its probe four months later.

The Journal article notes that Mr. McCabe played no role in his wife’s campaign; he appeared in no events and participated in no fund-raising. He sought ethics advice from the bureau, and followed it, avoiding involvement with public correction cases in Virginia. At the end of 2015, Mr. McCabe was promoted to FBI headquarters, where he assumed the No. 3 position. In February 2016, he became the second-in-command to FBI Director James Comey. His supervision of the Clinton email case in 2016 was not seen as a conflict because his wife’s unsuccessful senatorial bid was over by then, and McAuliffe was not part of the probe.

The article provides no evidence whatsoever that McAuliffe tried to influence the outcome of the Clinton email investigation. It did note that McAuliffe has been under investigation for months by the FBI’s Washington field office for donations made on behalf of a Chinese businessman, possibly in violation of a law requiring people to register as agents of a foreign entity. Stated the Journal: “It was unclear the extent to which Mr. McCabe may have recused himself from discussions involving Mr. McAuliffe.”

Bacon’s bottom line: The article presents not a scintilla of evidence to suggest that McAuliffe backed Mrs. McCabe for any reason other than what he stated, which was to win a Democratic majority in the senate. Unless concrete evidence surfaces, any insinuation to the contrary cannot be taken seriously.

What the article does illustrate, however, is how inbred and incestuous Washington government and politics are. We can infer by Mrs. McCabe’s allegiance to the Democratic Party that Mr. McCabe likely is a Democrat as well — although even that cannot be assumed. (Politically mixed marriages do occur.) If it can be documented that Mr. McCabe is a Democrat, one might be justified in asking whether his partisan leanings had anything to do with his ascent through the Obama administration FBI or if they affected his oversight of the Clinton investigation. Those are not idle questions given the controversial decisions that someone in the FBI hierarchy made (a) to tightly limit the scope of the investigation and (b) to grant immunity agreements to five Clinton insiders, including Secretary Clinton’s chief of staff Cheryl Mills. (Google “clinton email investigation fix” for more concerns.)

If the Journal had written an article focusing on the role Mr. McCabe played in the FBI’s questionable decisions, then it would have been reasonable to ask if he was motivated by partisan considerations. But the Journal didn’t write that article. It wrote an article that emphasized McAuliffe’s connection. And, based upon what we know, there just isn’t any “there” there.

Update: The Republican Party of Virginia is jumping on the story. “Today, at my direction, the Republican Party of Virginia is filing a Freedom of Information Act request with Governor McAuliffe’s office for any and all communications related to Dr. Jill McCabe’s 2015 campaign for state Senate,” said RPV Chairman John Whitbeck in a press release. “While the Governor’s PAC is not a public organization, we also call on Terry McAuliffe to release any and all emails to and from that organization related to Dr. McCabe’s campaign.”

Good luck with that.

Virginia’s Meth Epidemic Is No Joke

meth_epidemic

Imbibing crystal meth. Image credit: KPBS.org

by James A. Bacon

My son, now in college, has a running joke when his mom and I call to see what he’s been up to. Not much, he deadpans, except for cooking up some crystal meth. An amusing gag for an affluent suburban family where no one imbibes anything stronger than a cabernet sauvignon. But not so funny in Southwest Virginia, ground zero for Virginia’s methamphetamine epidemic.

I’ve just finished reading August Wallmeyer’s book, “The Extremes of Virginia,” which describes the social and economic challenges of Virginia’s poorest rural regions. Much of the material is familiar to regular readers of Bacon’s Rebellion, but I found his discourse on Virginia’s meth epidemic to be particularly helpful in understanding a region where I spent several years as a young journalist but have not often visited since then.

Fatal drug overdoses occur everywhere in Virginia but have spiked in the rapidly decaying coal-mining region of Southwest Virginia, the Eastern Shore and a slew of counties on Northern Virginia’s exurban fringe. In the far Southwest, meth production has risen much like illegal distilleries did during Prohibition, as a cottage industry. In 2009, writes Wallmeyer, “meth production went mainstream and big time, when the ‘shake and bake’ method was brought to Virginia, courtesy of a waitress who had moved from Indiana.”

Knowledge of how to cook meth passes from word to mouth. “A guy in Tennessee teaches someone in Bristol, who teaches someone in Abingdon, who teaches someone in Marion, and so forth,” he says. Because the drug can be concocted from legally obtained materials found in cold medications, batteries and household products, anyone can make it. The number of known meth labs in Virginia has increased from 28 in 2009 to more than 400 in 2014.

The drug produces a euphoric “high” but destroys dopamine receptors in the brain, diminishing all sensations of pleasure. Seeking to retain the high, meth addicts increase consumption, which is not hard to do because meth is a relatively inexpensive drug. Recovery and rehabilitation is extremely difficult because it takes as long as 18 months for the body to repair its dopamine receptors — far longer than an addict’s typical stint in jail or time spent in a 6- to 12-week rehab program. The meth culture is so deeply ingrained now that someone coming out of jail or rehab returns home only to find himself surrounded by other meth users and producers — mirroring the drug problem that has long plagued inner cities.

Widespread drug use creates social problems that magnify the social and economic problems of Southwest Virginia, where the coal economy has collapsed and there is no other industry (other than meth production) moving in to replace it. With increasing regularity, notes Wallmeyer, job seekers are failing drug tests. “There are reports of 50 percent failure rates for people taking job-related drug tests in Southwest Virginia.” That’s devastating to anyone trying to recruit industry to the area. When a region can’t sell the education and skills of its workforce, which are severely lagging in Southwest Virginia, all it has to sell is its work ethic. But if half the workers are drug addicts, economic developers can’t even sell that. In a vicious cycle, the lack of job opportunities creates a pessimism and despair that makes it easier to fall prey to drug abuse.

What can be done? Wallmeyer’s account doesn’t offer much grounds for optimism. But he does present one concrete idea from Jason Robinson, a 20-year state police veteran working in the Southwest Virginia drug task force, and that is to go after the smurfs. In meth parlance, smurfs are the buyers who round up the ingredients that go into meth, the most critical of which is pseudoephedrine, which appears in cold medicines such as Tylenol, Sudafed, Claritin and Allegra. Robinson advocates creating a meth offender registry of anyone convicted of meth-related crimes to prevent smurfs from purchasing meth ingredients.

“We have a prescription monitoring database, but physicians aren’t required to use it,” he tells Wallmeyer. “Lots do, but not all. We have all this technology, but don’t take advantage of it.”

The state also needs to address the mismatch between drug rehabilitation programs, geared for 6- to 12-week treatments, and the long-term nature of meth addiction. Writes Wallmeyer: “Virginia needs to decide either to provide longer-term drug rehabilitation facilities, or to accept the 93 percent recidivism rate, with its attendant consequences and public costs.”

Bacon’s bottom line: One aspect of the meth addiction that I wished Wallmeyer had explored was the impact of substance abuse on the family and child rearing. I would imagine that meth addicts do not make good spouses and good parents, and I would hypothesize that the meth epidemic is ravaging already-fragile households, creating abysmal environments for children who, in addition to coping with material poverty, must survive absentee parents, domestic violence, child neglect and a panoply of problems that lead to poor academic achievement, a propensity for dropping out of school and general failure as an adult. Drugs, joblessness and social dysfunction make a destructive combination.

A Measured Approach to Restoring Felons’ Civil Rights

by James A. Bacon

habeeb

Del. Gregg Habeeb

Virginia Republicans have excoriated Governor Terry McAuliffe for endeavoring to issue a blanket restoration of civil rights to ex-felons. So, what’s their alternative?

First and most important, Republicans are submitting their proposals as bills that can be reviewed, debated, and amended. The process is transparent, and the public will have a chance to weigh in.

Second, a legislative package announced by Del. Greg Habeeb, R-Salem sets different standards for violent and non-violent offenders. Explains Habeeb in a press release (no link):

The constitutional amendment would allow non-violent offenders, as defined by the General Assembly, to automatically receive their political rights after they have completed their sentence, including all supervised or unsupervised probation, and paid all fines, fees, court costs, and restitution. Violent offenders would be allowed to apply to the governor two years after they have completed their sentence and any probation. The governor would be allowed to restore rights on an individual basis after they have paid their fines, fees, court costs, and restitution.

Everyone deserves an opportunity at redemption, but the nature and severity of the crimes should be taken into consideration and a second chance should only come after they have completed their entire sentence, which includes paying their debts to the justice system and to victims.

The package, which is co-sponsored by De. John O’Bannon, R-Henrico, and Peter Farrell, R-Henrico, also would restore the right to own a firearm to non-violent offenders.

There’s a lot to debate here, but I’d wager this package comes closer than a blanket restoration of rights to reflecting the sentiments of most Virginians. But we really won’t know for sure until we subject the proposal to the legislative process. It’s called democracy. Some people still believe in the concept.

Virginia’s New Debtor’s Prison

speeding_ticketby James A. Bacon

Damian Stinnie, a 24-year-old African American living in Charlottesville, grew up in the foster care system in Virginia but managed to graduate from high school with a 3.9 GPA. Living with his twin since aging out of foster care, he has worked nearly full-time as a sales clerk at Walmart and, after losing that job, at Abercrombie & Fitch, earning minimum wage, or about $300 per week.

In 2013, Stinnie was convicted of four traffic citations, resulting in fines and charges of $1,002. When he was unable to pay, his driver’s license was suspended, and another $501 in costs imposed. Not knowing that his license was suspended, he continued driving. Stopped again, he was cited for driving without a license. Later that year, he was hospitalized for lymphoma. Unable to attend the court hearing, he was found guilty in absentia of driving without a license and ordered to pay another $117 in court costs and a $150 fine. And the story of woe, cited in a class-action lawsuit filed by the Legal Aid Justice Center, just gets worse. Read it and weep.

An estimated 940,000 Virginians, disproportionately minorities, have a suspended license for nonpayment of court costs and fines. Not every case may be as severe as Stinnie’s, but thousands are trapped in a downward spiral. Denied a license, they find it difficult to find and maintain a job. If they drive illegally, they rack up even more court costs and fines.

“Driver’s license suspension is Virginia’s form of a debtors’ prison,” Angela Ciolfi, a senior attorney at the Legal Aid Justice Center, is quoted as saying in the Reason Foundation’s Hit & Run blog. “Many areas of the state provide no reliable public transportation, effectively leaving people confined to their homes or forcing them to risk jail time by driving on suspended licenses.”

Last month the Legal Aid Justice Center filed a lawsuit challenging Virginia’s policy of suspending drivers licenses indefinitely for unpaid court debts. States the lawsuit:

Hundreds of thousands of people have lost their licenses simply because they are too poor to pay, effectively depriving them of reliable, lawful transportation necessary to get to and from work, take children to school, keep medical appointments, care for ill or disabled family members, or, paradoxically, to meet their financial obligations to the courts. …

In order to fund its basic operations, the Commonwealth has steadily increased the amounts that may be taxes as costs against convicted criminal and traffic defendants and tacked on various additional fees.

Assessments against criminal and traffic court defendants have risen from $281.5 million in fiscal year 1998 to $618.8 million in 2014.

Bacon’s bottom line: Clearly, the system has broken down. Thousands of Virginians are caught in a vicious cycle of indebtedness to the courts. The system needs to be reformed.

But how do we reform it? That gets tricky. The unfortunate Mr. Stimmie did have a bad habit of piling up traffic tickets. Do we abandon the practice of fining people who violate traffic laws? Do we scale the size of the fines according to peoples’ incomes, as they I believe they do in some Scandinavian countries? Do we stop requiring people to pay court costs? If we do so, who does pay — the general public? Do lawbreakers get off scot free and law-abiding citizens pick up the tab?

Whatever the answer — and there are no easy ones — we need to do something. Particularly heinous, insofar as it does occur, is the practice of jacking up fines and penalties as a substitute for taxes. If there is a social justice cause that could unite liberals, libertarians and perhaps even conservatives, this would be it.

Update: Correction made to Damian Stimmie’s pay at Abercrombie & Fitch.

Another Proud Moment in Virginia Government

Where do they find these guys?

Mayor Richard Silverthorne. Where do they find these guys?

From NBC News:

The mayor of Fairfax, Virginia, has resigned following his arrest last week for allegedly trying to exchange methamphetamine to undercover detectives in exchange for sex, city officials said Monday.

Mayor Richard “Scott” Silverthorne … 50, was arrested and charged with felony distribution of methamphetamine and misdemeanor possession of drug paraphernalia after a sting operation that had been underway since July led an undercover detective to the mayor, who provided detectives with methamphetamine.

The detectives had contacted Silverthorne through a website, where he promised them a “group sexual encounter” with men in exchange for the drugs, according to the Fairfax City Police Department.

Which Is More Fundamental: the Restoration of Felons’ Rights or the Constitutional Separation of Powers?

mcauliffeby James A. Bacon

Imbued with a sense of righteousness over the loss of voting rights for convicted felons, Governor Terry McAuliffe is unrepentant about his decision to restore those rights to more than 200,000 ex-felons by executive decree.

In a statement released Friday, McAuliffe decried a Virginia Supreme Court decision ruling that blocked his diktat and excoriated Virginia Republicans for wanting “to deny more than 200,000 of their own citizens the right to vote.” Said he: “I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored.”

The statement suggested a total blindness of the difference between two things: (a) a worthy policy, and (b) the means by which that worthy policy is to be achieved.

I suspect that most Virginians would agree with McAuliffe’s goal of restoring voting rights to non-violent ex-convicts who have served their terms, although victims of violent crimes might object to the idea that the felons have “paid their debt to society.” Reasonable people can disagree over whether murderers and rapists, as opposed to shop lifters and marijuana smokers, should have their rights restored. Also, as we have seen from the clumsy roll-out of the voting rights restoration, there are numerous questions about how that process should be executed.

In a democratic republic, sorting through these issues is not the governor’s job. It is the legislature’s job. Republicans who sued to block McAuliffe’s move were doing so not to obstruct the struggle for civil and human rights but to uphold the constitutional principle of separation of powers.

“Forty states give citizens who have made mistakes and paid their debt to society a straightforward process for restoring voting rights,” said McAuliffe in his statement. Very impressive. I would suggest that he investigate how those 40 states did so. I’ll wager that the vast majority, if not all, did so by enacting a law.

McAuliffe says he will expedite the process of restoring rights on an individual basis, as provided for under the Virginia Constitution, to the 13,000 felons who tried to register. That’s fine. He is empowered to do that. But if he wants to restore voting rights to all the rest, he’ll have to go about it the old-fashioned way: taking his case to the General Assembly and getting his proposal enacted into law. If the General Assembly is recalcitrant, as it might be, then he needs to get his foes voted out of office. It’s called democracy. And democracy and the rule of law are the foundation for the civil rights about which McAuliffe is so exercised.

Virginia’s Email Scandal

House District 72 - does this look compact to you?

House District 72 – does this look compact to you?

by Brian Cannon

Today the Supreme Court of Virginia will hear a case about emails politicians don’t want you to see.  You may miss the story in the news because this has nothing to do with presidential politics. Rather it’s about Virginia’s 2011 gerrymander.

Five years ago, Virginia was split with Democrats in control of the Virginia Senate and Republicans in control of the House of Delegates. Governor Bob McDonnell appointed a blue-ribbon commission to propose less partisan maps for Virginia. Unfortunately, legislators did not take the directive seriously. Instead of agreeing to a reasonable approach that benefited Virginia voters, the partisan political leaders of both chambers agreed to feather their own nests. The Republicans in the House passed the Democratic gerrymander of the Senate and the Democrats in the Senate passed the Republican gerrymander of the House. Bi-partisanship at its worst.

Which lawsuit is this again? In 2015, Citizens from across the political spectrum joined to sue the Commonwealth over the lack of compactness in Virginia’s General Assembly districts. A quick look at the districts will give you a clear view of how non-compact these districts actually are. They include six drawn by the Democrats in the Senate and five drawn by the Republicans in the House. By specifically avoiding districts affected by the complication of the Voting Rights Act, the suit is a clear shot at Article II Section 6’s requirement for compactness without all of the complications of the moving target that is today’s VRA.

This lawsuit is funded by the non-partisan OneVirginia2021 with lawyers and a significant discount provided by Wyatt Durrette’s firm DurrettCrump. This is not the same initiative as the Democratic National Redistricting Trust challenge of racial gerrymandering. One of those cases changed Virginia’s congressional boundaries and the other is before the Supreme Court of the United States this fall.

So how do emails work into this?  In the discovery phase of this compactness trial (yeah, we still haven’t gotten to trial yet), the trial judge in Richmond made a ruling about the scope of legislative privilege. The plaintiffs argued legislative privilege should be narrowly construed — about a foot wide.  The defendants argued it is a broad privilege — about a mile wide. Judge Marchant of the Richmond Circuit Court ruled, in effect, that the privilege was a few feet wide. The House of Delegates complied and has been turning over emails and other related documents since.

>In an unprecedented move to avoid turning over their emails, four sitting state senators requested instead to be held in contempt of court. The court obliged, fining each senator $100 a day since early April. The four sitting senators are all Democrats — the same ones behind the gerrymandering in 2011. Originally, the group included one sitting Republican Sen. Richard Stuart, R-Westmoreland, but he complied with the court order, stating to the Washington Post:

I’m a lawyer and I’m never going to refuse a court order. … You just don’t do that. Number two, I’m a public servant and I’m doing the public’s work. Number three, I believe in transparency.

If only Senators Dick Saslaw, D-Springfield, George Barker, D-Alexandria, John Edwards, D-Roanoke, and Dave Marsden, D-Burke, saw it that way and complied with the trial court’s order.

Brian Cannon is executive director of OneVirginia2021.