Thursday, January 22, 2015

Some Good News, a Start Date was Added to Senator Garrett’s SB1138 AND It Appears We Have Confirmation the 2006 and 2008 Retroactive Re-Classifications Legality is Highly Questionable!

Finally, a bit of good news to share from the 2015 Virginia General Assembly session. 

Yesterday afternoon the Senate Courts of Justice Committee heard SB1138 which 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 I posted about the issue with this bill back on January 14, 2015 . I wasn’t opposing the point of making it a felony, I opposed the fact that it had no start date and when past bills like this have become law.... the Virginia State Police has then implemented the change retroactively to the currently listed Registered Sex Offenders on the VSP Registry. By increasing their classification from Non-Violent to Violent, making them “Lifers” instead of being able to petition for removal after 15 years and changing their mandated re-registrations from once a year to every 90 days. All while denying them due process. 

When I spoke to the Virginia Senate Courts of Justice Committee about this issue it was amazing every single one of them.... I had their undivided attention. 

I told them that when they made similar legislative changes in 2006 and 2008 without including a start/effective date the Virginia State Police (VSP) took that as a directive to retroactively apply the change to our current Non-Violent Offenders. I told the Committee that I found the number from the 2008 change to be 1,492 Virginians and I still didn’t know how many from 2006. That the fiscal impact statements in 2006 and 2008 did not capture including these current offenders and that this SB1138 was also going to miss the true cost since we don’t know if 200 or 2000 Non-Violent Offenders who would be swept up. 

I reminded them that the Virginia Sex Offender Registry already lists approximately 83% of the Offenders as Violent leaving just 17% as Non-Violent and with SB1138 we would move Virginia closer to a single-tiered classification system where everyone listed is considered the same and no ever has the ability to petition for removal. Making it worthless for the public who are attempting to decipher who poses a true threat and who has just been swept up in such mass legislative mandates like this one.

I asked the Committee to add a start date of July 1, 2015 otherwise SB1138 would weaken the already questionable classification system we have in the Commonwealth.
Then I took my seat.
The Senate Committee Legal Analyst then told the Committee that § 9.1-901. Section C states Unless a specific effective date is otherwise provided, all provisions of the Sex Offender and Crimes Against Minors Registry Act shall apply retroactively. This subsection is declaratory of existing law he then declared to the Committee that a start/effective date was NOT required for SB1138 because it did not specify a change to 9.1-902 . 

The Chairman of the Committee asked me to re-approach to restate why I was asking them for a start date.....I have NEVER been asked or allowed to re-approach the podium, in 7 years if I ever tried to do that to clear up confusion or to argue some falsehood someone after me stated I've been immediately yelled at and/or instructed to take my seat. To be asked to come back and explain was unprecedented. 

I then told the Committee members I knew what the statute said but the VSP has historically been applying the Legislatures changes in law retroactively and last year (2014) when this exact same bill was discussed in this very Committee the VSP Legislative Liaison that year stepped forward to agree with me telling the Committee that they would in fact apply the change retroactively if no effective date was added to the bill.
I motioned to where the current VSP Legislative Liaison had been sitting just 2 minutes ago when I made my first statement and we all realized he had left the room all together to avoid being asked to participate in the conversation. I think this surprised the Committee members that the VSP Representative had bailed from the room ......this reinforced my claims of how the VSP has been applying legislative increases of misdemeanors to felonies retroactively onto existing RSO’s even though the specific required section of statute was never included in those bills that became law years back.  

Just a reminder to readers, last session a staffer with Legislative Services had advised me after the 2014 Garrett bill debate that 9.1-902 had not been amended back in 2006 and 2008 so the VSP should NOT have reclassified ANY Non-Violent Offenders to Violent based on the bills that became law, I replied to the staffer but the VSP did apply them retroactively and then the 2014 version just “died”. 

It would seem the VSP should have NEVER reclassified the Non-Violent RSO’s to Violent in 2006 or 2008, when they did so they were no authorized! 

I believe the entire Senate Courts of Justice Committee came to this realization yesterday after I was able to provide them with a number of 1,492 from 2008 (taken right from the VSP annual report) and the VSP Representative fled the room to avoid the conversation. So even though the Legal Analyst to the Senate told the Committee no start date was necessary for SB1138 a motion to add a start date of July 1, 2015 to the bill was made by a Senator and then the ENTIRE Committee agreed to it. Not one “No” vote against it! 

So good news not only for SB1138 not affecting current RSO’s but good news because Virginia Senators now know the VSP incorrectly reclassified Non-Violent RSO’s based on legislation that was never intended to be applied retroactively. 

I believe a court challenge against the 2006 and 2008 VSP re-classifications would be extremely successful. I hope some of you are now considering taking this important step not just for yourself but everyone who was wrongly made a “Lifer” by misapplication of changes in Virginia law.

Mary Devoy