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.  

Action Alert: SB583 Patroned by Senator Thomas Garrett Could be Used to Silence and Threaten Prosecution Against Those Who Dare Oppose a Popular Piece of Legislation

This post is NOT about a proposed piece of legislation that would affect RSO’s or create more RSO’s. I usually do not stray off topic on this blog but this particular bill is SOOOOOOOOO bad and could possibly be drafted against me (no I’m not paranoid) that everyone needs to know about it and if you oppose it, contact your two State Representatives immediately! 

At first glance SB583 sounds and would seem to be not just logical but a wonderful idea. 

Authorizes the chairman or at least one-third of the total membership of a committee or subcommittee to request any person addressing the committee or subcommittee to take an oath to testify truthfully. Any person who takes the oath and then knowingly makes a false statement to the committee or subcommittee is guilty of a Class 1 misdemeanor. 

In the last 5 years, every statement I have ever made at the G.A. and VSCC meetings is based on facts; I even offer my sources to the committee members routinely. 

Whereas over the same 5 years many exaggerated truths, old data, inflated statistics, unreliable sources and bold faced lies have been made by an array of other Advocates, State Employees and Legislators. And I routinely point out their errors to them and their committees. I’ve learned from experience that most people will say just about anything to get their bill passed, all bets are off. 

I am a proponent of accountability and transparency; it is one of many reasons why I record the audio of all public hearings. 

It seems the “idea” of SB583 is its only good point, once you get into the body of the text you quickly realize it allows for subjective and selective truths, only.  

Perhaps if SB583 stated that ALL witnesses speaking at a G.A. hearing, including the Committee Members, the Bill’s Sponsor, any State employees who make a statement or answer a question posed by the Committee members and then members of the public. Then SB583 would create a fair playing field where everyone is held to the same standard.  

Sadly this is not the case, as currently written SB583 would not be a non-partisan, non-biased policy or process. 

Because of the “flexible application” in SB583 to create a fair environment every Committee hearing in every room of the G.A. building would need to be assigned a neutral referee or judge from the VA FOIA Council or Legislative Services. Perhaps video taping the proceeding as a record after all any Committee member could claim an intentional false statement had been made carrying a misdemeanor criminal charge and a video would be beneficial for both sides.

As written an oath request for speakers addressing the Committee would be left open to either the Chairman of the Committee or at least one-third of the Committee, at their discretion. Well we all know about discretion it can be self serving and easily be abused when there is no oversight.

A request for an oath or perhaps “demand” is a better word could easily be welded against those whom intend to speak in opposition of a Bill.  

Since most Legislative Committees weigh heavily towards one Political Party this policy could serve that party to intimidate and silence those who dare oppose the proposal. In its most corrupt form this policy as proposed could be used to punish those who might not hold the opinion of the majority, of advocates who are not “favorites” of the lawmakers, of those in the past who have publicly pointed out errors, non-facts and opinions being paramount during bill debate. And vice versa when there is a bill that the majority opposes anyone who speaks for the bill could be asked to take an oath as retaliation for their stance.  

By not holding everyone who partakes in the public discussion equally accountable, cherry-picking of oath requests will most likely be the norm. 

If someone declines to take an oath, will their testimony be discounted? I would have to believe so. 

What if the three previous witnesses who supported a bill were not asked to take an oath but when the witnesses for the opposition approach the podium they were systematically singled out and asked to submit to an oath?  How is this fair or just? Is it not stacking the deck? Did the shadow of suspicion not just befall those about to testify? Would just cause be offered or simply I question your honesty for no particular reason is justification enough?  

Seems like a power grab, an abuse of power perhaps even a little bit like McCarthyism, to me. An unfair allegation to restrict and besmirch an advocates character and motive followed up with a completely unfair investigation system that is really just a dog-and-pony show for the public. 

Many times the opposition I have to a Bill is based on a rights violation.  

Let’s say that SB583 passes into law as currently written. Then I oppose a bill that would have detrimental effects on those directly impacted and their families. The bill does not proceed through the session, it dies.

Then after session either the patron of the bill that died, the chairman of the committee in which it died or one of the many attorneys on the committee who was in favor of the bill decided to challenge some part of my statement as a non-truth. They file charges against me as many of Virginia’s lawmakers are attorneys and prosecutors so they have the necessary resources at their fingertips. I would then be forced to hire a lawyer to defend myself in court, on my own dime. Lawmakers with the right resources could rack up claims of false testimony against unpopular citizen advocates, just costing them a bit of time. Each session I oppose 4-12 bills and I speak against most of them, even if everything I say during my yearly statements is factual and can be verified, how much time and how much money would I have to invest after every session to prove it all in court? Vindicated, but bankrupt does not serve me well. 

Such a system would dissuade the average citizen from coming to Richmond to participate in our Democratic process by speaking on a piece of legislation. 

But yet, no Virginia Legislator is held to the same standard of verifiable truths at ANY point during session. Not the claims or promises that are made to constituents in their offices. Or what they say openly to their colleagues, to the public or to witnesses during Committee hearings. Not what they say to the media when they are holding a press conference to “sell their bill”. And not when they are giving a speech or presentation on the floor of the chamber. Any exaggeration of the truth, any biased or flawed study and any single example of one heinous crime that is an anomaly is held up as the example in which all future laws should be based on. The smoke screens, the half-truths, the red herrings and the fear-mongering it’s all acceptable when a Legislator does it because they are protected under “political speech”.  

I believe SB583 in its current form to be a cunning attempt to forego the legislative process. 

SB583 eliminates all possibility of a fair and balanced system of legislation debate and input in Virginia. With its passage the opposition would be held to a higher and in some cases an unachievable level.