Bacon's Rebellion

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More Legislating Through the Budget

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Dick Hall-Sizemore
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by Dick Hall-Sizemore

Since Governor Youngkin was successful in getting into the budget bill a provision establishing a criminal penalty for possession of more than four ounces of marijuana, he apparently has decided to go even  further in using the budget bill as a means to amend the criminal code without having to go through substantive committees.

The Governor’s proposed amendments to the budget bill include three provisions that would expand  existing criminal procedure and provisions related to offenders in prison and create a new felony offense.  None of the provisions has any relationship to state expenditures or revenues, which is the usual subject of the budget bill.

The provisions are:

  1. Sentence credits—Decreases the number of sentence credits (“good time”) certain offenders can earn;
  2. Rebuttable presumption. —Expands the list of offenses for which there would be a rebuttable presumption against bail;
  3. Picketing– Creates a Class 6 felony for picketing or demonstrating in or near a court or residence with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing or intimidating in the discharge of his or her duty any judge, juror, witness, court officer, or court employee, or any immediate family member of such individuals.

The General Assembly will take up the Governor’s proposed budget amendments when it convenes on Friday.  No matter what one thinks of the merits of these three proposals, it is a dangerous precedent to allow the sections of law dealing with crimes and criminal procedure to be amended without the proposals being heard and debated in committees especially established to deal with this type of legislation.  In this particular case, the proposals were not even considered in either of the budget committees.  The only debate possible will be on the floor of one or both houses after being proposed only a full day prior to being considered by the members.  Furthermore, the proposals must be accepted or rejected as presented.  There will be no opportunity to propose amendments to them.

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32 responses to “More Legislating Through the Budget”

  1. Nancy Naive Avatar
    Nancy Naive

    DeSantis Lite — less thought with all the oppression.

  2. Stephen Haner Avatar
    Stephen Haner

    Dick, sorry to jump on you with my own post on the gas tax, but the morning will get away from me. I fully agree the bad trend is on full display. The one that really caught my attention is the award of cash to the families of two fallen campus police officers, laudable certainly but an interesting precedent (unless I’ve missed previous such awards.)

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      I noted that one too with a raised eyebrow. Because the campus police officers were employees of a private college makes it even more unusual.

      1. VaPragamtist Avatar
        VaPragamtist

        Because they were employees of a private college, might there be some sort of restriction that makes them ineligible for LODA or other similar benefits?

  3. Matt Adams Avatar
    Matt Adams

    “The General Assembly will take up the Governor’s proposed budget amendments when it convenes on Friday. No matter what one thinks of the merits of these three proposals, it is a dangerous precedent to allow the sections of law dealing with crimes and criminal procedure to be amended without the proposals being heard and debated in committees especially established to deal with this type of legislation.”

    Yes, bad precedent but when you have a GA that is unwilling to do their jobs it will happen. Much like the use and abuse of EO’s at the Federal Level.

    1. Kathleen Smith Avatar
      Kathleen Smith

      It is not precedent. It has been done many, many times. For the reasons you give. Maybe he should have made this kind of action law in the budget as well.

      1. Matt Adams Avatar
        Matt Adams

        “It has been done many, many times”

        That is the definition of a precedent.

        1. James C. Sherlock Avatar
          James C. Sherlock

          Matt, you missed a word. She is saying it is not a precedent.

          1. Matt Adams Avatar
            Matt Adams

            Thanks for the clarification.

        2. James C. Sherlock Avatar
          James C. Sherlock

          Matt, you missed a word. She is saying it is not a precedent.

  4. vicnicholls Avatar
    vicnicholls

    Agreed Dick. I think the 3rd was discussed and voted down – at least one like it from Senator Bill deSteph was put up and shot down.

    “No matter what one thinks of the merits of these three proposals, it is a dangerous precedent to allow the sections of law dealing with crimes and criminal procedure to be amended without the proposals being heard and debated in committees especially established to deal with this type of legislation. In this particular case, the proposals were not even considered in either of the budget committees. “

  5. DJRippert Avatar
    DJRippert

    The marijuana provision is an interesting point. As I noted last December, intoxicating THC is completely legal to sell in Virginia and it is sold widely. No extra taxes are paid. No empowerment of communities badly affected by the war on drugs is happening.

    https://www.baconsrebellion.com/delta-8-thc-and-the-governments-marijuana-plans-go-up-in-smoke/

    Younkin tried to get Delta-8 made illegal but the proposed bill failed.

    https://www.13newsnow.com/article/news/local/virginia/cbd-delta-8-cannabis-regulation-virginia/291-6e60280f-6dee-4fbb-8aa0-3895e9b4e954#:~:text=As%20marijuana%20sales%20remain%20illegal,workaround%20for%20sellers%20and%20consumers.&text=HAMPTON%2C%20Va.

    So, if you want to avoid criminal prosecution for having more than four pounds of marijuana, just make sure that you have the right kind of THC in the marijuana you possess.

    The Virginia Way!

  6. DJRippert Avatar
    DJRippert

    Are all committee votes – whether to pass forward, kill, or hold over a bill a matter fo public record?

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      If there is a motion–report, table, pass by indefinitely, etc., there is a recorded vote, in both subcommittee and committee, that is a public record. Bills can also be “left” in committee with no action taken. In those cases, there is no vote.

      1. DJRippert Avatar
        DJRippert

        Thank you.

    2. vicnicholls Avatar
      vicnicholls

      DJ I have a copy of every vote made in the General Assembly this year for subcommittee, committee and floor. You can look them up.

  7. James McCarthy Avatar
    James McCarthy

    With so much mewling about judges legislating from the bench, it is refreshing to be reminded about executive legislating. One can perhaps forgive some budgetary generosity for favored or worthwhile matters, but, in this case, the precedent shattering moves are corrosive.

  8. LarrytheG Avatar
    LarrytheG

    Interesting how Youngkin apparently believes the GA can play that legislation-in-the-budget game, he can too.

    Youngkin is proving to be a substantial Governor, even perhaps thoughtful.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      Or he has some shrewd advisers, i.e. Richard Cullen.

    2. CrazyJD Avatar
      CrazyJD

      Wow, I think Larry may have nailed it. But I’ll defer to further comment.

      I am confused by the…”precedent” Has this happened before or not? Both posters seem to be arguing by assertion.

      I would be against messing with prison credits for time served. The idea of no-parole took away the judgment that might be exercised in releasing the guys who are not a threat and have made significant progress in prison. As it stands, the formula for good time is complicated and depends on a host of factors, some of which have nothing to do with a prisoner’s behavior in prison. The Courts and Legal department of the Department of Corrections frequently gets it wrong, and it’s a real pain in the ass to correct. You can almost never get a prisoner to understand what DOC has done, so you constantly see distress and time wasted on both sides with grievances that have to be filed, DOC personnel having to answer them, and no lawyer to help sort it out.

      I understand the political imperative, but I’m not sure I understand the gain (4 1/4 or 4 days good time per month ” vs. the old but current 4 1/2 days) for the additional layer of crap that everybody will go through. Do we do “old calculation” for guys already in prison? In other words, do we grandfather? Do we do a mix of old and new? What about the perception of fairness among prisoners? It’s fine to say we don’t care what the prisoners think, but I’ve found most prisoners understand why they are there and accept it, because that’s what they were told by their lawyers. When you change the game midstream, you are really throwing nuts and bolts into the gears of the system.
      See e.g. Sexually Violent Predator Law Code 37.2 -900 et seq. A guy finishes his 20 years for sex crimes and the state says, “Not so fast. We’re going to commit you indefinitely because you committed sex crimes and we think (usually without meaningful evidence) that you’re a predator). ” It’s an exceptionally difficult task to explain why this isn’t ex post facto punishment.

      Every prisoner can tell you exactly how many days he has left on his sentence. When you mess with it, there are problems for everybody.

    3. CrazyJD Avatar
      CrazyJD

      Wow, I think Larry may have nailed it. But I’ll defer to further comment.

      I am confused by the…”precedent” Has this happened before or not? Both posters seem to be arguing by assertion.

      I would be against messing with prison credits for time served. The idea of no-parole took away the judgment that might be exercised in releasing the guys who are not a threat and have made significant progress in prison. As it stands, the formula for good time is complicated and depends on a host of factors, some of which have nothing to do with a prisoner’s behavior in prison. The Courts and Legal department of the Department of Corrections frequently gets it wrong, and it’s a real pain in the ass to correct. You can almost never get a prisoner to understand what DOC has done, so you constantly see distress and time wasted on both sides with grievances that have to be filed, DOC personnel having to answer them, and no lawyer to help sort it out.

      I understand the political imperative, but I’m not sure I understand the gain (4 1/4 or 4 days good time per month ” vs. the old but current 4 1/2 days) for the additional layer of crap that everybody will go through. Do we do “old calculation” for guys already in prison? In other words, do we grandfather? Do we do a mix of old and new? What about the perception of fairness among prisoners? It’s fine to say we don’t care what the prisoners think, but I’ve found most prisoners understand why they are there and accept it, because that’s what they were told by their lawyers. When you change the game midstream, you are really throwing nuts and bolts into the gears of the system.
      See e.g. Sexually Violent Predator Law Code 37.2 -900 et seq. A guy finishes his 20 years for sex crimes and the state says, “Not so fast. We’re going to commit you indefinitely because you committed sex crimes and we think (usually without meaningful evidence) that you’re a predator). ” It’s an exceptionally difficult task to explain why this isn’t ex post facto punishment.

      Every prisoner can tell you exactly how many days he has left on his sentence. When you mess with it, there are problems for everybody.

    4. CrazyJD Avatar
      CrazyJD

      Wow, I think Larry may have nailed it. But I’ll defer to further comment.

      I am confused by the…”precedent” Has this happened before or not? Both posters seem to be arguing by assertion.

      I would be against messing with prison credits for time served. The idea of no-parole took away the judgment that might be exercised in releasing the guys who are not a threat and have made significant progress in prison. As it stands, the formula for good time is complicated and depends on a host of factors, some of which have nothing to do with a prisoner’s behavior in prison. The Courts and Legal department of the Department of Corrections frequently gets it wrong, and it’s a real pain in the ass to correct. You can almost never get a prisoner to understand what DOC has done, so you constantly see distress and time wasted on both sides with grievances that have to be filed, DOC personnel having to answer them, and no lawyer to help sort it out.

      I understand the political imperative, but I’m not sure I understand the gain (4 1/4 or 4 days good time per month ” vs. the old but current 4 1/2 days) for the additional layer of crap that everybody will go through. Do we do “old calculation” for guys already in prison? In other words, do we grandfather? Do we do a mix of old and new? What about the perception of fairness among prisoners? It’s fine to say we don’t care what the prisoners think, but I’ve found most prisoners understand why they are there and accept it, because that’s what they were told by their lawyers. When you change the game midstream, you are really throwing nuts and bolts into the gears of the system.
      See e.g. Sexually Violent Predator Law Code 37.2 -900 et seq. A guy finishes his 20 years for sex crimes and the state says, “Not so fast. We’re going to commit you indefinitely because you committed sex crimes and we think (usually without meaningful evidence) that you’re a predator). ” It’s an exceptionally difficult task to explain why this isn’t ex post facto punishment.

      Every prisoner can tell you exactly how many days he has left on his sentence. When you mess with it, there are problems for everybody.

  9. James C. Sherlock Avatar
    James C. Sherlock

    You call this “a dangerous precedent” Dick. That means it has never happened before. Did you mean that literally?

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      These three provisions and the marijuana provision are the first instances I know of in which there have been budget amendments either establishing new criminal offenses or changing criminal justice provisions with absolutely no tie to expenditures or revenues.

      1. James C. Sherlock Avatar
        James C. Sherlock

        Thanks. I would not have known that if you had not told me. It sounds like something that no one could look up.

      2. LarrytheG Avatar
        LarrytheG

        I’m also ignorant about this. Is this something unique to Va or is this the way things work in other states also?

        By :”this” – I mean the separation of legislation process from budget process.

        This sure looks like a way to basically evade/avoid the regular legislative process. I can see good, bad and ugly.

        Some folks would probably like this process for bills that normally die in committees… but on the other hand, rogue legislation is possible.

        Do you know if these things are then voted on in the GA separately or all put into one omnibus bill to be voted up or down?

        1. Dick Hall-Sizemore Avatar
          Dick Hall-Sizemore

          Each state is so different that comparisons would not have much meaning.

          Legislating in the budget has been going on for a long time. Lately, it has accelerated.

          In some cases, it is done as a matter of convenience. In other cases, it is done so as to incorporate provisions that would otherwise die in other committees.

          If the extraneous provision is included in the budget bill reported from the Senate Finance or House Appropriations Committee, it can be challenged on the floor and voted on separately (up or down, but not amended). On the other hand, if it is in a budget conference report, such as the marijuana provision, it can’t be voted on separately–the entire conference report is subject to an up or down vote; no amendments allowed. Amendments proposed by the Governor can be voted up or down, but not amended.

          The budget bill adopted by the 2020 Special Session I General Assembly was probably the best example of this trend. This was at the beginning of the pandemic. For whatever reasons, the General Assembly used the budget bill as a vehicle for lots of stuff unrelated to expenditures and revenues, including rent and utility relief, emergency orders under the pandemic, and the structure of the redistricting commission (contingent upon passage of the constitutional provision). Most of these provisions were subject to floor debate in at least one house and an up or down vote.

          It could be argued that the Democrats opened the door in 2020 to using the budget bill as an omnibus bill for just about anything. And there would be a lot of truth in that argument. However, somehow it seems to me that including provisions that carry a criminal penalty or otherwise tighten criminal procedures that result in longer sentences or make it harder to make bail and stay out of jail is going too far. If I were a lawyer and had a client that was adversely affected by any of these provisions, I would challenge their constitutionality under the “single object” rule.

          1. LarrytheG Avatar
            LarrytheG

            Thank you much!

            Done a long time, now more and more of it – Dems moved the needle more… basically turns the legislative process into something the average person will be fooled by if he/she thinks that is the true legislative process.

            Anything they do (or not) can be trumped in the later/downstream budget process and done so in an opaque and arbitrary way – even worse than unrecorded committee votes!

            Not at all what most folks believe is the legislative process. Out of all the elected reps, in the end, only a very few actually decide and the others relegated to a much lesser role.

            It now becomes a negotiation between the Govt and what, a half-dozen or so elected reps?

            really goes against the whole idea of one-man, one-vote to determine laws and legislation.

            IMHO.

          2. LarrytheG Avatar
            LarrytheG

            Thank you much!

            Done a long time, now more and more of it – Dems moved the needle more… basically turns the legislative process into something the average person will be fooled by if he/she thinks that is the true legislative process.

            Anything they do (or not) can be trumped in the later/downstream budget process and done so in an opaque and arbitrary way – even worse than unrecorded committee votes!

            Not at all what most folks believe is the legislative process. Out of all the elected reps, in the end, only a very few actually decide and the others relegated to a much lesser role.

            It now becomes a negotiation between the Govt and what, a half-dozen or so elected reps?

            really goes against the whole idea of one-man, one-vote to determine laws and legislation.

            IMHO.

          3. LarrytheG Avatar
            LarrytheG

            Thank you much!

            Done a long time, now more and more of it – Dems moved the needle more… basically turns the legislative process into something the average person will be fooled by if he/she thinks that is the true legislative process.

            Anything they do (or not) can be trumped in the later/downstream budget process and done so in an opaque and arbitrary way – even worse than unrecorded committee votes!

            Not at all what most folks believe is the legislative process. Out of all the elected reps, in the end, only a very few actually decide and the others relegated to a much lesser role.

            It now becomes a negotiation between the Govt and what, a half-dozen or so elected reps?

            really goes against the whole idea of one-man, one-vote to determine laws and legislation.

            IMHO.

    2. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      These three provisions and the marijuana provision are the first instances I know of in which there have been budget amendments either establishing new criminal offenses or changing criminal justice provisions with absolutely no tie to expenditures or revenues.

  10. walter smith Avatar
    walter smith

    Unlike most of the people here with whom I disagree politically, DHS makes fair points. I am not a fan of doing things out of the “normal order” and our “normal order” in this country and in my beloved Commonwealth is out of whack. It would help if the Senate was not committed to partisanship and had a few more Chap Petersens, who are not crazy, but we don’t.
    I think at the federal level, Congress should not get paid for no budget, and no federal employee should be paid for a shutdown. At the State level, maybe we penalize for every extra day and all these special sessions. Do your job and get out of town and let Virginians be free! Too much time and ability to pose…

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