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Tuesday, January 19, 2016

IMMEDIATE Action Item: Oppose HB628 Patroned by Delegate Rob Bell….It Will be Heard in House Courts of Justice Criminal Sub-Committee Wednesday January 20th


Update: 

Around 4:30 PM on 01/19/16 the House Courts of Justice Criminal Sub-Committee Agenda for 01/20/16 was edited and HB628 was removed. 

I went ahead and attended today’s hearing anyways because two years ago in this same Sub-Committee at the beginning of a meeting it was vocally announced a specific bill on that days agenda would NOT be heard that day after all, so I left for home. Then later during that meeting Chairman Bell (of the Criminal Sub-Committee) decided to place it back on the agenda so I missed the one chance to speak against that bill that year. After that I lost all faith in the House Criminal Sub-Committee agendas and any announcements made to the room. If a bill I’m tracking is on one version of their agenda, I’m showing up. I might be wasting my time and parking money but better safe than sorry. 

I was promised by Legislative Services Mr. Cotter during a 5 minute break after all the "Drone" Bills were heard at today’s meeting that HB628 would NOT be heard today, so I headed back home. 

The next Criminal Sub-Committee meeting will be Friday afternoon, I expect at least one House “Sex Offender” bill to be on the agenda but we’ll have to wait and see. 
 
I hope to post about a few Bills tomorrow after I've meet with some Legislators that I have scheduled appointment with....... so stay tuned!

Mary


Original Post:


What does HB628 do? 

Well part one is already done, publicly posting the Employer Information of RSO’s on the Virginia State Police Registry. Which leads me to believe this Bill came at the request of the Virginia State Police to counter SB11, that passed the Senate Courts of Justice just yesterday with an amendment.  

The VSP Registry ALREADY lists the Employer information online so why include it in HB628 as if it’s a new proposal? 

Because when the VSP added the Employer information online back in 2006 or 2007 they did so without ANY Legislative oversight and that's a serious problem!  

This Bill is an attempt to "fix" that SIGNIFICANT overreach that flew under the radar years ago and so Institutes of Higher Education have been included in this Bill so the argument "we already do this" won't kill it in the first Sub-Committee hearing. 

This Bill is a CYA for the VSP. 
 

Delegate Chris Peace’s Bill HB672 AKA Eli’s Law Expands the List of Crimes for Placement on the VSP Sex Offender Registry


So I’ll start with the good news, HB672 has a start date of July 1, 2016………probably not because the Delegate doesn’t want to violate ex post facto or deny people due process but because up until now the State hasn’t been tracking the age of the victim, if they are 13 or younger.

This means any adult previously convicted of Malicious Wounding or Aggravated Wounding of a 13 year old or younger will not be swept up if this becomes law unlike what the WTVR story lead viewers to believe Mother of assaulted Hanover baby works to put violent felons on registry, January 8, 2016 http://wtvr.com/2016/01/08/mother-of-assaulted-baby-violent-felons-on-registry/ . Unless of course Delegate Peace decides to remove the start date, so I will be keeping a close eye on that. 

But this proposal expands the list of crimes for registration as a Sex Offender in Virginia. Yes the Virginia State Police Registry is called The Sex Offender and Crimes Against Minors Registry but the connotation of being an RSO is that everyone who is posted is a pedophile, a pervert, a rapist and/or a predator. 

If you read the Virginia definition of malicious wounding it’s problematic. 

In fact Delegate Dave Albo has this posted on his law website:

 


So malicious wounding is basically assault and battery, it doesn’t require a weapon and if there is a level of blood lost, it qualifies.
 
I checked some other Virginia Attorney sites and a broken bone would also qualify as malicious wounding. 

So an argument between a 13 year old and an 18 year old sibling that results in blood loss or a broken bone could land the 18 year old brother or sister on the Virginia Sex Offender Registry making college admission near impossible, securing housing and steady employment an eternal cycle of denials, evictions and terminations. 
 

Action Item: A Start Date MUST be Added to Senator Tom Garrett’s SB86, Otherwise it Will be Applied Retroactively by the Virginia State Police Taking Current Non-Violent RSO’s and Retroactively Re-Classifying Them to Violent Making Them VSP Registry “Lifers” While Denying Them Due Process


SB86 is the third attempt for Senator Garrett to increase 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. 

Back in 2015 it was SB1138 and in 2014 it was SB442  both died in the Appropriations Committee due to its high cost.  But supposedly for the upcoming 2016 session there is plenty of money available so I’m thinking this time the proposal has a very good chance at passing through the Legislature. 

Personally, I do not oppose the increase in penalty for this crime by an adult against a child I didn’t oppose it in 2014 or 2015 and I’m not going to oppose it this year. 

BUT………….there is a VERY serious problem with SB86 that needs immediate attention. 

2016’s SB86 does NOT  include an “effective date” of July 1, 2016; 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 by the Virginia State Police. 

Anyone convicted of this crime since it’s inception in 2007 through until June 30 2016 who was originally classified as Non-Violent Sex Offender will be elevated to a Violent Sex Offender, without ANY due process.  

I raised this issue back in 2014 and it was ignored by the patron. 

I again raised it in 2015 and at first the patron and the Committee members tried to say my concern was unwarranted but then when I provided facts and real examples they reluctantly added a start date. 

And more recently I raised it with the Virginia Legislators and the Administration after a sit down meeting with VSP Lt. Col. Kemmler (who retired in January 2016) confirmed to me that yes, indeed if the Legislature does NOT add a start date to Legislation directed towards Registered Sex Offenders the VSP will apply it retroactively. 

And yet Senator Garrett filed the exact same verbiage for the upcoming 2016 session that he filed in 2014 and 2015 ignoring this issue all over again! 

How many Non-Violent Offenders would this retroactive mandate capture if passed into law as-is?
 

2016’s SB86 Fiscal Impact Statement has Less DOC Beds and Will Cost Less Money than the Estimates from 2014 and 2015’s But the Number of Convictions Stayed the Same, How Can This Be?


SB86 is the third attempt for Senator Garrett to increase 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. 

Back in 2015 it was SB1138 and in 2014 it was SB442  both died in the Appropriations Committee due to its high cost.  But supposedly for the upcoming 2016 session there is plenty of money available so I’m thinking this time the proposal has a very good chance at passing through the Legislature. 

I contacted the Virginia Criminal Sentencing Commission with a FOIA request a few weeks back for all the convictions under this statute since 2000 and because the crime is currently a misdemeanor, they advised me that they were unable to fulfill my FOIA request. 

So I’ve compared the 3 years of fiscal impact statements 

  • In 2016 for SB86 the estimate is 29 VA-DOC beds would be needed at a cost of $920,316.00. Estimated 6 year Impact on DOC Beds was FY2017-8, FY2018-17, FY 2019-22, FY2020-26, FY 2021-28 and FY 2022-29.
  • In 2015 for SB1138 the estimate was 33 VA-DOC beds would be needed at a cost of $1,010,913.00. Estimated 6 year Impact on DOC Beds was FY2016-10, FY2017-19, FY 2018-25, FY2019-29, FY 2020-32 and FY 2021-33.
  • In 2014 for SB442 the estimate was 32 VA-DOC beds would be needed at a cost of $960,821.00. Estimated 6 year Impact on DOC Beds was FY2016-10, FY2017-20, FY 2018-26, FY2019-29, FY 2020-31 and FY 2021-32.