Wednesday, January 29, 2014

All Virginia Senate Committees are Re-Organized/ Re-Assigned on the Third Week of the 2014 General Assembly Session

Blog Followers, 

The members of the Senate Courts of Justice Committee have changed as of yesterday’s power shift in the Virginia Senate. 

See these articles for more details on the changes: 

Senate Democrats U-turn on power sharing, January 29, 2014

Democrats present plan to take control of Senate, January 28, 2014

Assembly Democrats flex newfound muscle, January 28, 2014

Va. Democrats assume control of state Senate, change rules, January 28, 2014

Democrats realign state Senate; GOP calls method ‘anarchy’, January 28, 2014

Democrats take control of Virginia Senate, January 28, 2014

This is the new make-up of the Committee that hears the majority of RSO issues in the Senate. 

2014- Senate Courts of Justice Committee as of January 29, 2014 

Richmond, VA. During Session
Henry Marsh
John Edwards
Janet Howell                       *Also on VSCC
L. Louise Lucas
Ryan McDougle
A. Donald McEachin
Thomas “Tommy” Norment                          *Also on VSCC  
*Also on VCSC
Mark Obenshain
J. Chapman “Chap” Petersen
Toddy Puller
Richard Saslaw
William Stanley
Richard Stuart
Jill Holtzman Vogel
Jennifer Wexton

Please note the three changes. Removed were Senators Garrett and Reeves, added are Senators Petersen and Wexton, new Chairman is Senator Marsh. 

Thank you! 

Mary Virginia’s Appellate Courts have Been Choosing to Make Public Access Much More Difficult than it Should Be

Thank you eAdvocate for posting the below report card. 

Now if the Virginia General Assembly would only video record all Sub-Committee and Full Committee hearings to document who supports and opposes each bill and to learn what the reasons, concerns and benefits of a bill are. As well as the daily House and Senate chamber sessions, if you don’t catch those live on-line there is no watching them after the fact. 

Then allow for live and replay on-line viewing of the hearings by citizens across the Commonwealth. But still as of in 2014 that isn’t a possibility, why! 


Public access to the states’ highest courts: a report card

It’s self-evident that the Supreme Court of Virginia is an important part of state government.  But because the court may seem remote from most people and day-to-day life, it’s worth briefly considering the scope of its ability to impact the lives of Virginians. 

In the last year, the Supreme Court of Virginia has ruled in cases concerning the duty that state educational institutions have with respect to students, the tolls that residents and travelers in Virginia’s second most populous region will soon be paying, the legality of Texas Hold ‘Em poker, the relationship between congregations and denominations, and many other matters of public interest.  It does not take going far back in time to find Virginia’s appellate courts deciding matters as intimate as whether unmarried people may legally have sex.  (The answer: yes, as long as they’re over 18.  16 & 17 year olds apparently should get married first.  But we digress.) 

In short, Virginia citizens have a huge interest in what Virginia’s appellate courts do.  The public also has a well-established constitutional right of access to court records and proceedings. 

In practice, however, Virginia’s appellate courts have been choosing to make public access — especially to the facts, arguments, and law (in briefs and oral arguments) that influence and lead to opinions — much more difficult than it should be.  Specifically: 

  • Despite the fact that it has scanned/digitized versions of more than 100 years of briefs, and that court rules require parties to file an electronic copy of new briefs (see Rule 5:26(e)), the Supreme Court does not make briefs available on its website.  You must request a copy.  Nor will the court e-mail that copy to you.  They will print out a paper copy, for which you must pay $0.25 per page.
That difficulty and lack of access to important appellate records and proceedings is unfortunate and galling.

We suspected that the situation in Virginia also was unusual, but, to our knowledge, there has been no source of comprehensive, comparative information for the 50 states.  We decided we could fix that. 

So we produced an assessment of public access to the top court in each state (779 KB PDF)  In addition to a narrative summary, recommendations for improvement, and a Q&A-format discussion of public access, the report card provides detailed, state-by-state information, supported with relevant hyperlinks, in an easy-to-understand format. 

We expect to highlight various parts of the report card in future posts.  We hope you’ll spend a few minutes perusing it, but we won’t make you read the report to find out how Virginia scored:  with its recent start of a publicly accessible archive of oral argument audio recordings, Virginia received a “C-”.  (That was up from an original score, before last Friday’s announcement, of “D”.)  Virginians now need not console ourselves merely with saying “at least we’re not Alabama.”  But there’s still considerable room for improvement.

Tuesday, January 28, 2014

Action Alert: Virginia SB384 Patroned by Senator Bryce Reeves, Would Effectively Ban Registered Sex Offenders from Public Libraries Without Specifically Stating It

This is a follow-up to yesterdays post on SB384 . 

The substitute that was offered up and accepted by the Senate Courts of Justice Committee yesterday has now been posted on-line. 

Original Proposal:
D. Every adult who is convicted of an offense prohibiting proximity to children, when the offense occurred on or after July 1, 2014, shall as part of his sentence be forever prohibited from knowingly and intentionally having any contact whatsoever with children that are not in his custody on the premises of any place that he knows or has reason to know is a public library.

E. A violation of this section is punishable as a Class 6 felony.

January 27, 2014 Substitute:
D. Every adult who is convicted of an offense prohibiting proximity to children, when the offense occurred on or after July 1, 2014, shall as part of his sentence be forever prohibited from knowingly and intentionally approaching within six feet of any children that are not in his custody on the premises of any place that he knows or has reason to know is a public library.

E. A violation of this section is punishable as a Class 6 felony.

The substitute is much, much worse than the original proposal was. 

Yes, they removed the word “whatsoever” but they also removed the word “contact” and added a 6 foot “buffer zone”  As I mentioned in my earlier post adding the word “physical” in front of the word “contact” would have been a better solution but still not a great one. 

Imagine a local library if you would. The rows/aisles of books are very close together, many rows are dead ends. The rows of tables are also very close together, when you push your chair back from a table to get up it actually touches the chair behind you. 

With the proposed substitute for SB384 a Registered Sex Offender (RSO) who walks down a long row of books comes upon a minor already in the row must now evacuate immediately but when they turn around what if there is a second minor who has just entered the row blocking the only route out. Has the Registered Sex Offender done anything wrong or illegal? No! 

But to avoid prosecution the Sex Offender must keep a 6 foot distance between both minors who now surround him and he can not evacuate the row because then he’d be approaching the minor blocking the exit and leave less than a 6 foot distance..  

If this bill becomes law Virginia Code has created a situation where a citizen who has no criminal intent has just committed a felony despite all attempts to prevent that felony which does NOT apply to ANYONE else. 

With the new substitute being far worse than the original proposal that needed attention, I have now come to the conclusion that the real intention of this bill is to in fact ban Registered Sex Offenders from Virginia libraries.

But that is unconstitutional (January 2012 New Mexico)! So how can the Commonwealth make it illegal for a Registered Sex Offender to be in a library BUT not actually state the obvious? They create a policy making it impossible to be in a library without violating a 6 foot radius and after a few RSO’s are prosecuted and word gets out, all RSO’s will just avoid going to a public library out of fear of prosecution. 

I know it sounds cynical or perhaps paranoid to some but I do believe this is the true intention of SB384. Especially with the knowledge of why this bill was submitted (see yesterdays post) for public masturbation, public urination and to stop lewd propositioning of minors. If these are in fact the problems, then let’s deal with these 3 separate statutes instead of creating a brand new proposal that is impossible to abide by so everyone it applies toward will just give up and avoid going to a library all together. 

In its original version and in its newest substitute SB384 intentionally creates an inhospitable environment for Registered Sex Offenders under the threat of a Felony that applies to no other Virginian.  

If present in a Library the RSO could and most likely would be placed in a situation where he or she has committed a felony without choice. This is NOT an administrative proposal, it is not a protective measure for Virginia’s children, it is 100% punitive against RSO’s. This is essentially banishment of Registered Sex Offenders from public libraries and if this bill passes this year it will lead to additional locations being added in future years. 

Schools, daycares and playgrounds are place that only children utilize and so they are protected "zones". 

By expanding such “zones” into public areas that adults utilize as much if not more than children and that are supported by their taxes is going too far! 

Libraries are where citizens can read and learn of their rights within our Commonwealth and about the Constitution, it should not be a place that we now ban them from entering under threat of a felony. 

I try very hard to avoid using phrases like “slippery slope” but this bill fits perfectly 

The original bill was full of possible unintended consequences but yesterday’s extemporaneous substitute creates even more “what-ifs” and “traps” for only the “undesirables” of our community. I believe this is not accidental or unforeseen but is intentional and is the opening salvo towards banishment from any and all public spaces. This clearly violates the rights of those affected and cannot stand. The text of the bill avoiding actually using the term banish does not make this Bill or where it will eventually go any less of an attack on the Constitution which our elected officials have pledged to uphold. 

Please Email or call  your Virginia Delegate and Senator today and tell them to vote “NO” on SB384.  

Mary Devoy

Monday, January 27, 2014

The Rationale Behind SB384 is Absurd and Today’s Amendment Did Nothing to Make it Any Better

Today SB384  RSO’s in Libraries - Senator Bryce Reeves Provides that any adult who is convicted of an offense prohibiting proximity to children, when the offense occurred on or after July 1, 2014, shall as part of his sentence be forever prohibited from knowingly and intentionally having any contact whatsoever with children that are not in his custody on the premises of any place that he knows or has reason to know is a public library. A violation is a Class 6 felony was heard by the Senate Courts of Justice Committee. 

I raised a few concerns with this proposal to the committee members today. 

1- Growing up in Norfolk during the 70’s and 80’s (long before the Internet) if I had a school project to research I would go to the Kirn Library, downtown…. a known sanctuary for the homeless, mostly men.  

Could some of those homeless men have been “sex offenders” with a prior conviction? Sure. 

Did I ever interact with those men in a way that could be captured by this proposal? Yes I did and that’s where “knowingly and intentionally having any contact whatsoever” has me very concerned.  

The homeless men held the door to the entrance open for me, they stood in line at the fountain waiting for a drink of water, even holding the stubborn button down for me, they sat and sometimes slept at the same table I was sitting at, they’d walked down the same row of books I was sitting on the floor in, they road inside the elevator with me and they smiled and said hello almost every time, they were polite and so was I. 

In today’s paranoid, hyper-sensitive and “think-the-worst-first” world we live in, I wonder if those men who might have been “sex offenders” but were not up to anything sinister would today be questioned and charged for their “contact” with me. Would common courtesy NOW be construed as criminal activity simply because they are on a registry? 

This proposal probably sounds reasonable to most people because the perception of a Registered Sex Offender is of a high risk of danger, an inevitable threat. Well, perception is NOT reality. RSO’s have the second lowest recidivism rate of ANY crime. 

Wouldn’t it be just as reasonable to instead propose that ANY adult male or female be prohibited “whatsoever” from contact with ANY child not in their custody; ONLY Library employees can speak to, approach or assist minors? After all statistically there is a MUCH higher chance that a person not on the registry will approach, abduct or molest a child than someone who is a known ex-offender. Additionally if a person, anyone is creating a public nuisance or even talking in a library this person can be approached and told to discontinue their activities. Further activities in violation of Library policy could result in them being asked to leave the premises by the librarian and failing to follow this instruction I believe could be charged with disorderly conduct or creating a public nuisance. 

2- Today the proposal is for Libraries…. Next year will it be Barnes & Noble stores, McDonald’s, Museums, Zoos, Malls or maybe the State Capitol. Once we start banning contact in one location, won’t it lead to another and another until finally we’ve banished them from having contact with anyone, anywhere, whatsoever? When will it be enough?  

3-This proposal creates a NEW Felony for ONLY Registered Sex Offenders. Today in Virginia even after 5 separate attempts over the last 6 sessions to mandate the Virginia State Police inform Registered citizens of their legal restrictions and regulations they still vigorously opposes a requirement to disseminate this critical information.
·         2009-   HB2225
·         2010-    HB1328
·         2011-     HB2382
·         2012-    SB420
·         2013-    No Bill
·         2014-   SB553 

How will Virginia’s Registered Sex Offenders know that their next trip to the local library could result in a Felony charge if this bill becomes law? They won’t, situations with no criminal intent and normal behavior will now be a crime with SB384. 

The requester (a Commonwealth’s Attorney) of SB384 came to Richmond and spoke to the Committee to explain why this bill is needed. 

She stated that there have been 14 separate cases in Virginia where RSO’s have approached and been seen by minors in libraries with some deviant intent. They fell into 3 categories public masturbators, public urinator’s and sexual “propositioners”. 

I spoke to the requester on January 14 via phone so I knew what the reasoning behind the request was before today’s meeting. Over the last 2 weeks I have been searching on-line for news of Registered Sex Offenders in Virginia libraries committing such acts, not only did I find only one article where it was not noted anywhere that the “flasher” was an RSO but I did NOT find 14 cases. Just one! 

Action Item: Virginia Bill SB442 Passed Through Senate Committee and Remains Unconstitutional

Today SB442- Sexual Abuse of a Child - Senator Thomas Garrett Raises the penalty for sexual abuse (a defined term) of a child aged 13 or 14 from a Class 1 misdemeanor to a Class 6 felony was heard by the Senate Courts of Justice Committee. 

I was advised while voicing my first concern of no specific age gap allowance for a perpetrator who is close in age to the victim and did NOT use force, threat or intimidation, was unwarranted and that minors within 3 years of each other would not be unintentionally swept up.  

I was pleased to hear this news, but believe actual text stating it should be included in the text of the proposal in order to prevent potential Romeo and Juliet cases from being prosecuted as a felony. 

My second concern was completely ignored by the Courts of Justice Committee today. 

Leaving SB442 a likely violation of due process and ex post facto with regard to those already required to register. 

The patron acknowledged to me last week that by not adding a start date if it would reclassify citizens already listed on our registry, it would be unconstitutional! But yet after asking the entire Committee to add a date, no one took the initiative to do so. 

As written SB442 would be applied retroactively to ALL past convictions for Registry purposes.  This is not my opinion or a hunch, it is fact! 

When it comes to the Virginia Registry, any registerable offense will be applied retroactively unless there is a start date per our statute.  There is a double-whammy when a misdemeanor is increased to a felony because re-classification occurs. 

Until 9.1-901 section C. is changed any and all registry offenses must include a date going forward. 

Without a date of July 1, 2014, what would this mean?   

Anyone convicted in 2010, 2000 or maybe even earlier would be retroactively reclassified from a Non-Violent Sex Offender to a Violent Sex Offender, without ANY due process. These newly categorized Violent Sex Offenders would now become “lifers” on the Virginia Registry, requiring Virginia State Police to monitor and manage them until they die.  

There are two possibilities with this. 

1- If the affected person is still on the Registry they would now be mandated to re-register every 90 days instead of once a year (4 certified letters per year) for another 30, 40 or even 50 years. This comes at a hefty cost to the state, one that the current fiscal impact statement does NOT take into account. 

2- Any person with a previously conviction of a misdemeanor who had petitioned the courts years back and was successfully removed from our Registry….by NOT having a start date of 2014 they would automatically be returned to the Virginia Registry as “Lifers” denying them due process.

So the next issue is how many people does this retroactive mandate capture? 200 or 2000? Not knowing the actual quantity means the fiscal impact statement is not accurate. 

A FOIA in 2010 informed me that 83% of our entire Registry was already classified as Violent; the remaining 17% as Non-Violent. This imbalance is due to Virginias current inferior 2-Tier, Conviction-Based (instead of a 3-Tiered, Risk-Based) Classification System. 

Fact is there are very few sexual misdemeanors left in Virginia because of bills like this lowering the bar while raising the penalty.  

Thursday, January 23, 2014

SB454 Committee Discussion Reveals the True Intention of Virginia’s Sex Offender Registry, it is Punishment!

During yesterdays Senate Courts of Justice hearing SB454 - Amends the Sex Offender and Crimes Against Minors Registry Act to add solicitation of prostitution from a minor was discussed and voted on. Other than it missing a start date of July 1, 2014, I did not oppose it.  

When the patron made his argument for SB454 to become law in Virginia the reasoning became public and the true intention of our Registry was not only revealed but supported by a unanimous 15-0 vote of the Committee. Yesterdays “sales pitch” I believe places the Virginia Sex Offender Registry even further at risk of being Constitutionally compromised.

I have reviewed the audio from yesterdays hearing; 3 times to be sure I have captured it completely and accurately. 

Senator Obenshain: 

“Looking at Human Trafficking issues …..and registration is not required today, this is a significant impediment…… the people engaging in the consumer side of sexual activity….. in a survey of individuals concerning what would deter them from engaging in commercial sex…. NOTHING was more successful than listing the potential offender on the Sex Offender Registry. 

Not even putting their face on billboards……. or putting them on television…… listing them on the Sex Offender Registry was the number one deterrent”. 

A deterrent is defined as 
deterrent - something immaterial that interferes with or delays action or progress
difficulty - a factor causing trouble in achieving a positive result or tending to produce a negative result; "serious difficulties were encountered in obtaining a pure reagent"
albatross, millstone - (figurative) something that hinders or handicaps; "she was an albatross around his neck"
bind - something that hinders as if with bonds
diriment impediment - (canon law) an impediment that invalidates a marriage (such as the existence of a prior marriage)
drag - something that slows or delays progress; "taxation is a drag on the economy"; "too many laws are a drag on the use of new land"
obstacle, obstruction - something immaterial that stands in the way and must be circumvented or surmounted; "lack of imagination is an obstacle to one's advancement"; "the poverty of a district is an obstacle to good education"; "the filibuster was a major obstruction to the success of their plan"
deterrent - tending to deter; "the deterrent effects of high prices"
preventative, preventive - tending to prevent or hinder

If Virginia is using registration as a Sex Offender as a deterrent, much like incarceration, probation, fines, restitution or community service then this changes the very nature of the registry.  

In the context of Senator Obenshain’s proposal from yesterday the Commonwealth’s intent is to utilize the Virginia State Police Sex Offender Registry as part of the punishment for criminal activities.