Sunday, January 12, 2014

Action Item: SB442 Violates Due Process and Ex Post Facto, it will Reclassify Non-Violent Offenders to Violent, it Could Create a 1-Tiered Classification System for the State and it Includes Other Minors Even if No Force Was Used

SB442 does NOT have a start date of July 1, 2014; this means as currently written this proposal to increase the penalty for sexual abuse of a 13 or 14 year old from a Class 1 misdemeanor to a Class 6 felony would be applied retroactive, not beginning for those convicted on or after July 1, 2014.  

What does this mean?  Why does that matter? 

Well anyone convicted in 2013, 2010, 2005, 2000, 1997 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 (VSP) monitoring and management until they die.  

If the RSO is still on the Virginia Sex Offender (they hadn’t already petitioned the courts for removal) they would now be mandated to re-register every 90 days instead of once a year (4 certified letters per year) and their 2 in-person residential visits by the VSP would now be until they die, that could be another 30, 40, 50 or even 60 years. This would be a heavy cost to the state both financial and man-power wise so the current fiscal impact statement of $960,821 for imprisonment is missing all of these costs to the State.  

Now, if the RSO previously convicted of a misdemeanor had petitioned the courts years back and was successfully removed from the Registry, SB442 would automatically return them onto the Virginia Registry as a lifer, again without ANY due process. So the current fiscal impact statement of $960,821 for imprisonment is missing these additional costs to the State.  

The next question would be how many people SB442 would capture retroactively if a start date is not added, that number needs to be known ahead of time.  

The current fiscal impact statement shows FY2012-2103 there were 45 people convicted under this statute. But then the “forecast” over the next six years out estimates 10 to 32 people being convicted by the statute, seems to be a disconnect in real cases and future estimates. So the next question is do we estimate the known 45 from FY2012 times the previous 20 years for an estimate of 900 Non-Violent Offenders being reclassified to Violent or will we know the actual number before this bill is voted on so an accurate fiscal impact statement can be produced? 

Back in 2010 I submitted a FOIA to the VSP inquiring the number of Non-Violent Offenders and Violent Offenders. At that time 83% of the Virginia Registry was classified as Violent and 17% as Non-Violent due to Virginias current inferior 2-Tier, Conviction-Based (instead of a 3-Tiered, Risk-Based) Classification System.

There are very few sexual misdemeanors left in Virginia because of bills like SB442 upping penalties. 

If the Legislature allows SB442 to remain retroactive and reclassifies anyone previously convicted under § 18.2-67.4:2  knowing that our Non-Violent Sex Offender category was only 17% 3 years ago, will there even be ANYONE left as a Non-Violent Offender? Or does this one bill make Virginia a one category/classification system for Sex Offenders where everyone is a “lifer” and no one ever has an opportunity to be removed? Basically, misleading the public to conclude they are all an equal threat, the worst-of-the-worst. 

I believe that is exactly what would happen if SB442 remains as is. 

Problem is, mass retroactive re-classifications in other States have been overturned and ruled unconstitutional by the courts because due process was denied and because a higher rating was viewed as punitive not administrative because of the lifetime mandate. In the states were court challenges have been won, those States spent a lot of time and money returning everyone to their original classifications and being removed after they were retroactively returned to the list. 

I have another question that I’ve posed to all the Legislators about this misdemeanor becoming a felony. 

There is no age gap allowance in § 18.2-67.4:2  for a perpetrator who is close in age to the victim and did NOT use force, threat or intimidation, what would happen in these cases under the new law? 

Victim                  Perpetrator
13 years old   -      12 years old
13 years old   -      13 years old
13 years old   -      14 years old
13 years old   -      15 years old
13 years old   -      16 years old
13 years old   -      17 years old 

Victim                  Perpetrator
14 years old   -      13 years old
14 years old   -      14 years old
14 years old   -      15 years old
14 years old   -      16 years old
14 years old   -      17 years old 

Would Virginia now be charging a minor who is a year younger, the same age or a year or two older with a felony? 

If the answer is yes then they would become a Registered Sex Offender (RSO), even though no force, threat or intimidation was involved.  

Not only would they become an RSO but they’d be classified as Violent (not Non-Violent) which would mean they would be “lifers” in Virginia with no opportunity to ever petition the courts to be evaluated and removed. 

As an RSO:
·        If they are still in high school they could be expelled, before receiving their degree
·        They would be prohibited from attending school functions and events with friends
·        They would most likely be denied acceptance to any Virginia College or University
·        They would find securing any work extremely difficult as no employer wants to have their company name listed on the Virginia Registry
·        They would find leasing an apartment or home extremely challenging as no landlord wants the other neighbors complaining about leasing to an RSO
·        They’d be prohibited from loitering near schools and daycares, plus parks that share a border with a school whether they intended to or not
·        They would be required to register every 90 days, for the rest of their life
·        Anytime their residence, employment, vehicle, phone number or email address changed they would be required to notify the authorities within the allotted time frame or face a new felony charge 

I do not oppose a change to Virginia code increasing the current misdemeanor to a felony, even though by doing so you are creating a one Tiered Conviction Based Classification System for the Virginia Registry. Wasting millions of dollars on people who are not a threat to children or society and making it impossible for citizens to decipher who is a true threat and who has been arbitrarily swept up in the continued increase of punishment against RSO’s if that’s the Legislatures goal, their on the way then. 

A bigger, more useless Registry actually works in my favor in advocating reform of our entire system and most likely will put it under the scrutiny of the Courts faster than I expected. 

By not having a start date of July 1, 2014 for SB442 it violates both ex post facto and due process and if this proposal moves forward as is, this will in fact present an opportunity for the first legal challenge after 5 years of considering such with precedent already being set in other States. 

Please Email or call  your Virginia Delegate and Senator and tell them to vote “NO” on SB442 or at least add a start date of July 1, 2014. 

Virginia Delegates                                                     Virginia Senators
Phone List                                                                           Phone List
E-mail List                                                                          E-mail List 

SB442 is headed to the Senate Courts of Justice Committee, if you feel industrious contact all the Committee members, here they are: 

Richmond, VA. During Session
Chairman               Thomas “Tommy” Norment                          *Also on VSCC  
*Also on VCSC
John Edwards
Thomas Garrett Jr.
Janet Howell                       *Also on VSCC
L. Louise Lucas
Ryan McDougle
A. Donald McEachin
Henry Marsh
Mark Obenshain
Toddy Puller
Bryce Reeves              *Also on VSCC
Richard Saslaw
William Stanley
Richard Stuart
Jill Holtzman Vogel


Mary Davye Devoy