Wednesday, January 14, 2015

Action Item for Virginia Senator Tom Garrett’s Bill SB1138 It Has NO Start Date So it Will Retroactively Reclassify an Unknown Quantity of Non-Violent Offenders to Violent, Denying Them Due Process and Violating Ex Post Facto!

Senator Tom Garrett’s 2015 SB1138 is identical to his 2014 SB442 which was left to “die” in the Senate Finance Committee for very good reason. 

Summary of SB1138:
Sexual abuse of certain children; penalty. Raises the penalty for sexual abuse (a defined term) of a child 13 or 14 years old from a Class 1 misdemeanor to a Class 6 felony.
Sounds reasonable, right? Wrong!

SB1138 does NOT have a start date of July 1, 2015; 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, 2015.  So anyone convicted in 2014, 2010, 2005, 2000, 1997 or 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.  

By not adding a start date to SB 1138 per § 9.1-901. Section C, Senator Garrett and any Virginia lawmaker who votes for SB1138 is denying Virginians due process and violating ex post facto.

How do I know this? Because the Virginia State Police has previously applied Legislative changes exactly like SB1138 retroactively to RSO’s on the VSP Registry for old convictions. Also during the 2014 debate of SB442 when I pointed this out to the Senate Courts of Justice Committee and to the patron….. the VSP Legislative Liaison approached the podium and agreed with me, that they would in fact apply it retroactively if a start date wasn’t added to the bill.

After the 2014 debate Senator Garrett told me he would add a start date to his 2014 bill (as I noted in a January 27, 2014 post), he didn’t! He told me what I wanted to hear thinking it would shut me up, it didn’t! 

The 2015 fiscal impact statement is not yet available but we have the 2014 fiscal impact statement of $960,821 for just imprisonment. But what about all the current Non-Violent Sex Offenders who will be retroactively affected if a start date is not added to the bill? They would 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 adds a huge amount of cost to the VSP monitoring and managing but none is capturing it anywhere. 

The 2014 fiscal impact statement showed FY2012-2103 there were 45 people convicted under this statute. But then the “forecast” over the next six years out estimated 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 current Non-Violent Offenders being reclassified to Violent because there is no start date? 

I do not oppose raising the penalty from a misdemeanor to a felony beginning in 2015. 

What I do oppose is the blatant denial to add a start date and that by not doing so no one will be retroactively affected when we all know they will, which makes the true fiscal impact of this change in code a complete unknown. 

With last years version I was also concerned that there was 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. The 2014 Committee claimed that was not an issue which I was pleased to hear but I still believe actual text stating it should be included in the bill in order to guarantee potential Romeo and Juliet cases from being prosecuted as a felony instead of as a misdemeanor. This year I will not rehash this particular concern but I’m leery by the answer that I was given in 2014.  

Please Email or call your one Virginia Delegate and your one Virginia Senator and either ask them to voteNoon HB1138 OR to add a start date of July 1, 2015! TODAY!

Anyone who is concerned about there being no age gap allowance in the text of the bill and would like to see a declaimer of anyone more than 3 years older added, please ask them to request the change.

Senator Tom Garrett- 

Thank you!

Mary Devoy