Bacon's Rebellion

Democracy Thrives in Sunlight

Protecting Virginia’s Forgotten Constitutional Right

—

by

James A. Bacon
in

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.

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19 responses to “Protecting Virginia’s Forgotten Constitutional Right”

  1. LarrytheG Avatar
    LarrytheG

    One would think that the LOGICAL use of fines would be to provide and fund a public defender office….in the first place and NOT general revenues…

    The Yahoos in the General Assembly should be doing this without having to have people urge them to…

    and a good point! – all these folks yammering about Constitutional “rights” – do they advocate them for the indigent also and restoration of the Voting right for those that have served their time?

    geeze..

  2. TooManyTaxes Avatar
    TooManyTaxes

    While I think Mr. Sanders overstates the constitutional arguments, there are good policy reasons to have an adequate public defender system. Salaried public defenders can often provide better defenses than court-appointed lawyers just because of repetition. Even the guilty deserve a chance to defend themselves.

    If implemented, it should be done on a statewide basis with regional staffing in all but the largest jurisdictions. And if it’s a state program, the Commonwealth should fund it statewide. That will keep costs in line.

    Larry – does restoration of the right to own and bear arms link with the right to vote? I would think so. A person who has had his voting rights restored should also get his gun rights back. And if an ex-felon should not be given a right to bear arms, he probably should not be voting either.

  3. LarrytheG Avatar
    LarrytheG

    re: rights restored… people who were sent to prison for using a gun is not the same as people sent to prison and subsequently denied the right to vote – unless their crime was illegal voting..

    people who use guns in the commission of a felony can have that right taken away even without going to prison.. right?

    people who committed felonies that were not related to gun use probably do deserve to have that right returned.

    I’m sure there are varying opinions on this.. and that we don’t all agree.

    but to deny someone the right to vote as a penalty for some other crime is not right… in my view… it’s like taking your property as penalty for committing a crime.. not related… People have had their cars taken because they were convicted of drug use… that’s not right either and there are actually COnservative folks who do actively oppose that… if they can oppose the loss of property rights – why not voting rights – if neither was part of the original crime?

    1. TooManyTaxes Avatar
      TooManyTaxes

      Larry – how do you rank the right to vote over the right to bear arms? Where is the constitutional source of that principle of law? A constitutional right is a constitutional right. It is permissible to condition these rights – for example one must be 18 to vote and one must pass a background check to purchase a gun. It’s also permissible to take those rights away such as when one is convicted of a felony. But there is no hierarchy of rights.

      To me, a person who committed and was convicted a felony that involved a firearm probably should not have his right to bear arms restored. Similarly, there’s an equally good argument he should not be permitted to vote after he’s served his time. On the other hand, a person who forged a check, was convicted and served his time seems to me to be a good candidate to have his voting and gun rights restored.

      1. LarrytheG Avatar
        LarrytheG

        I’m not ranking it higher. I’m saying that taking away a right has to have a nexus to abuse of the right… if you vote illegally.. you lose the vote.. if you use a gun illegally, you lose the right.

        You should not be taking rights away that have no connection to the crime committed. How do you justify that?

        further you say there is no hierarchy of rights – I agree but clearly SOME rights ARE selectively taken away and other rights not… so there is, in fact, some hierarchy.

        but again – you should not be taking rights away that had no connection to the crime committed – in my view.

        If you have history of violence.. there is some justification to deny you access to deadly weaponry.

        if you have a history of illegal actions with regard to voting – then there is justification.

        but what in the world justifies taking away the right to vote when there was no crime committed in voting?

        it’s basically a racist artifact from the Civil War era where white folks worked to find ways to deny the vote to blacks.

        1. TooManyTaxes Avatar
          TooManyTaxes

          Larry – I have no idea where you got the idea that revoking or restoring rights have anything to do with the nature of the crime. In the United States, the sovereign states have traditionally revoked the rights to bear arms and to vote from convicted felons. This includes states in the Midwest that had very few blacks. I grew up in Minnesota where both rights were revoked, generally from a very white population. m It had nothing to do with the Civil War era. It was punishment period.

          The logic was and is, persons who commit crimes should not have the same rights as those who don’t commit crimes. A lot of people would likely agree that people who defraud others or steal their identities and assets should not be able to vote. Society has a right to punish individuals who, after a fair trial, are convicted of crimes. Removing the rights to bear arms and to vote are legitimate punishments.

          1. LarrytheG Avatar
            LarrytheG

            TMT – you might want to look at this to see how the states handle this issue and note the ones that do not automatically restore rights at completion of sentence:

            There are only 9 states that do not automatically restore voting rights.

            http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx

            re: ” The logic was and is, persons who commit crimes should not have the same rights as those who don’t commit crimes. ”

            actually it was pretty arbitrary as to what rights were revoked and which ones not … no real rhyme or reason… and that’s readily apparent in how voting rights are restored after imprisonment… there is no common legal standard.. it’s whatever was decided in each case.

            In the south – is where felon disenfranchisement began and was in concert with other Jim Crow laws to strip rights from Blacks..

            but I’ll accede that it was done in other states for non racial reasons.

          2. TooManyTaxes Avatar
            TooManyTaxes

            Larry – your post-Civil War argument doesn’t work. Once Reconstruction ended and Hayes pulled troops from the South, blacks generally didn’t get to vote. When the Democrats regained control of state governments they enacted laws and constitutional amendments that prevented blacks from voting. It didn’t matter whether they were convicted of a crime or not; they could not vote.

            Revocation of voting rights started with the Greeks and Romans and became a part of Western legal systems. In fact, some nations prevented felons from owning property.

            The 14th Amendment recognizes state rights to disenfranchise individuals “for participation in rebellion, or other crime.” The Supreme Court held felony disenfranchisement laws to be constitutional in 1974. I am aware that some courts have rejected permanent disenfranchisement for minor crimes such as loitering and disorderly conduct.

            From a policy perspective, I favor restoration of voting and gun ownership rights for most people convicted of non-violent felonies after they’ve served their time and any probation or parole. I have trouble with restoration of rights for a guy like Bernie Madoff whose greed and criminal behavior gravely injured many people

            Restoration of civil rights for felons is a policy decision, not a legal or constitutional one. Similarly, I can support expanding public defenders in Virginia for policy reasons. I don’t buy Mr. Sanders’ 6th Amendment argument, although I do agree with his general proposal.

  4. Acbar Avatar
    Acbar

    I’m in favor of Statewide administration of “public defender” assistance for the simple reason that respect for the law depends on the perception that everyone has access to fair administration of legal process and fair resolution of disputes. And in today’s “alternative fact” world, respect for the law is hard to come by. I suppose it’s no coincidence that the County where Corey Stewart launched his political career is the only one in northern Virginia that feels no need to build respect for the law in this manner.

    1. LarrytheG Avatar
      LarrytheG

      can’t tell if Adbar is giving a legal or a political view!

    2. TooManyTaxes Avatar
      TooManyTaxes

      I’d recommend an eight member board that consists of four Democrats and four Republicans to prevent game playing and other nasty things.

      1. LarrytheG Avatar
        LarrytheG

        TMT – you think the determination of whether to have a Public Defender or not is a partisan issue? geeze guy. Have you observed that many GOP including BoB McDonnell support reform of both felon disenfranchisement as well as public defenders as an equal justice issue?

        only the most partisan would see these reforms as partisan.. in my view.

        1. TooManyTaxes Avatar
          TooManyTaxes

          Larry – I don’t see this as a partisan issue per se. But put activists in charge of public policy or money and skullduggery often happens. We need checks and balances.

  5. LarrytheG Avatar
    LarrytheG

    TMT – who are “activists”?? those who are different from you?

    as soon as you start characterizing others as “activists” how do you trust any public policy?

    should folks be supporting issues on the merits rather than identifying with people’s politics ?

    Arguing to keep in place what is there now – is a doomed strategy if what is there now – is wrong… or counterproductive.. or not sustainable.

    denying people the right to vote for “crimes” not related to voting is fundamentally wrong in a country that holds one-man-one-vote to be the highest standard of Democracy – in the world.

    we demean ourselves and make us more like despot-ruled 3rd world places when we say we hold the Constitution inviolate then proceed to strip people’s rights based on really arbitrary ideas that have nothing to do with the crime. If someone uses a gun then yes.. they can lose that right. If someone votes fraudulently, ditto. But to take someone’s right to vote because they committed a crime that has nothing to do with the vote is just turning the concept of the Constitution on it’s head. Where in the Constitution does it say you can take any right no matter which crime?

    1. TooManyTaxes Avatar
      TooManyTaxes

      Larry – back up the truck. The 14th Amendment to the Constitution, which was passed and ratified after the Civil War to protect the rights to vote of the newly freed blacks (not that it worked too well once Reconstruction ended) specifically allows state governments to take away the vote from individuals who “participat[ed] in rebellion, or other crime.” Ergo, taking away the right to vote from felons, either permanently or temporarily, is perfectly consistent with the Constitution. It cannot and does not “turn the Constitution on its head.” And it’s fully consistent with Western Civilization and law going back thousands of years.

      Now reasonable people can argue whether this is a good policy or not. But there has never been a tie between committing voter fraud and losing one’s suffrage. You, my friend, are making this up out of whole cloth.

      As I posted earlier, earlier traditions from which ours derives had a concept of “civil death” imposed upon those who were convicted of violating the law. Criminals lost the privileges of citizenship — the right to bear arms, the right to own property, the right to vote. It’s not unlike the concept of being declared an “outlaw” – someone beyond the protections of the law. Our old friends Robin Hood, Little John and Company were “outlaws.” They forfeited their rights as Englishmen and could even be killed without punishment.

      I’m not arguing the best policy is to deprive all felons of their civil rights even after they’ve completed their punishment. But it sure isn’t unconstitutional except in the minds of pseudo lawyers and judges who believe they, like King John, can make the law whatever they say. They’d have my old professor of English Constitutional Law rolling in his grave.

  6. LarrytheG Avatar
    LarrytheG

    re: ” specifically allows state governments to take away the vote from individuals who “participat[ed] in rebellion, or other crime.”

    that’s totally bogus TMT if it means ANY “crime” and yes… it does turn the Constitution on it’s head – and MOST STATES believe that also as they do not take away the right to vote for “any” crime and even for SOME crimes that right is given back after they serve their time … in all but a handful of states ..

    “… and judges who believe they, like King John, can make the law whatever they say. They’d have my old professor of English Constitutional Law rolling in his grave.”

    who makes those laws? not the judges.. the legislators.. and again 40+ states do the right thing.. and do not take away the right to vote for “any” crime.. nor do they permanently take it away – it is restored once they serve their sentence -as it should be.

    you point to the 9 states who don’t as the “right” policy. I point to the 40+ as “right” and the 9 as extreme and outside the norms..

    I’ll go with the less extreme point of view guy.. you can cling to the wrong way if you want.. but at least admit that you are in the minority on the issue.

    take that!

  7. TooManyTaxes Avatar
    TooManyTaxes

    Larry, you.ve made my point. I think it is fine for legislatures to amend the law to restore civil rights, including the rights to vote and bear arms, to most non-violent felons after they’ve served their sentences and any post-release condition. I would vote for such a bill if I were in the General Assembly. I have qualms about restoring rights to non-violent felons whose actions harmed a large number of people or individuals who have been harmed substantially. I would not restore rights to anyone who engaged in identity fraud or who drain elderly people’s bank accounts.

    But it is not unconstitutional for a state to refuse to do this. History and case law prove this.

    This is similar to what the Nebraska legislature did. It voted to abolish the death penalty and overrode the Governor’s veto. While I wouldn’t vote for that law, I respect the legislative process. Note, however, that the voters overturned the law in the November 2016 election. The death penalty is back on the books in Nebraska. I respect that too.

    The Constitution doesn’t change except through amendment. Otherwise it wouldn’t be a constitution that protects Americans. Ever since the English nobles forced King John to sign the Magna Carta, free people have sought the protection of laws that cannot be overridden by rulers. And the Constitution permits a state to restrict a felon’s civil rights. The way to change the law is through the legislative process. And on the merits, our opinions are pretty close.

  8. LarrytheG Avatar
    LarrytheG

    TMT – this is the section of the Constitution you are citing?

    “Section 2.

    Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.”

    So if someone commits ANY crime – the States can take away their voting right? Do you think if a state actually did that they they’d be challenged on Constitutional grounds and lose? Are we also to believe it does not apply to people under 21?

    Is this what it means when someone claims to be a “strict Constitutionalist”?

    and this is your defense against taking away the right the vote?

    I give up on you guy.. I see why we differ now.. and truth be known I’m not a fan of this kind of “Constitutional” thinking and I strongly suspect the SCOTUS itself would overturn any law that did take the vote for any crime BECAUSE there are other conflicting words as well as subjective words in the Constitution itself ..e.f. “cruel and unusual punishment” which leaves the determination of what is or is not – in the mind of the judge.. since it’s not bright-line clear in the Constitution itself – unless someone wants to cherry pick part of it out of context as their defense of “strict reading”.

    Put me in the camp that does not hold in high esteem such out-of-context cherry-picking and when “activist” judge put some common sense into the decision – it’s a “good” thing!

    taking people’s voting rights away from them for “ANY” crime is surely not what the Founding Fathers intended … and of course there are many other examples such as what “well regulated militia” weaponry meant back then and now.. i.e. it does not mean stinger missiles, or any of the advanced weaponry the military now possesses … civilians cannot have it.. and where in the Constitution does it place such restrictions on what weapons civilians can an cannot have?

  9. TooManyTaxes Avatar
    TooManyTaxes

    The Founding Fathers would have opposed restricting felons’ ability to vote. Come on. At the time the United States was formed, suffrage was largely limited to free white Protestant males over 21 and sometimes limited to those who owned a specified amount property. The property ownership requirement probably disenfranchised half the white males over 21. And often one had to be an Anglican or maybe a Presbyterian. Certainly not a Baptist, Catholic, Jew or Quaker. A few states let free blacks vote. But how many free African Americans were there as opposed to slaves?

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