Richmond, VA – Taking advantage of recent announcements from the governor that he will expedite restoration applications to enable former felons to vote in the November elections, the ACLU of Virginia has launched a program to encourage and assist individuals with the restoration of their voting rights.

The program begins with advertisements in today’s Voice newspaper in the Richmond area, and tomorrow’s Voice newspaper in Hampton Roads (Voice ad).  Tomorrow’s Richmond Free Press will run a large format version of the ad.  (Free Press ad).

The ads say the governor has indicated he will be able to process all fully completed applications from non-violent felons submitted by June 29 in time for the registration deadline of October 15.  Also, because the governor’s office has a general goal of processing such applications within 60 days, the ACLU is encouraging those who miss the June 29 deadline to try to submit applications by mid-August.

The ACLU chose newspapers primarily aimed at the minority communities because Virginia’s felon disenfranchisement law is a product of Jim Crow that still disproportionately impacts minority voters.

“Governor McDonnell has shown an increasing interest in reintegrating former felons back into society, including an emphasis on restoring voting rights,” said ACLU of Virginia Executive Director Kent Willis. “We want to help him do that by encouraging applications and helping with the process.”

“In the end, we are hoping that this will be the first step toward significant reform of Virginia’s felon disenfranchisement law, which will require an executive order from the governor or an amendment to the state constitution,”  added Willis.

Currently, only Virginia, Florida, Kentucky and Iowa disenfranchise for life all persons convicted of a felony, requiring an individual action by the governor for rights to be restored.  An estimated 375,000 persons in Virginia cannot vote because of a felony conviction.

Virginia’s felon disenfranchisement law in its current form dates to the state’s 1901 constitutional convention , often referred to as the “ Jim Crow convention,”  during which delegates instituted or continued poll taxes, literacy tests, appointive schools boards and felon disenfranchisement for the expressed purpose of suppressing voting by African-Americans.

Contact: Kent Willis, Executive Director, 804-644-8022

The Washington Times recently reported that Virginia is considering privatizing its only facility housing individuals civilly committed for sexual offenses.  Discussion of privatizing state functions and facilities often comes from a desire to cut costs, particularly in tough economic times.  But is privatizing a facility intended to rehabilitate sex offenders a good idea?

Before addressing that question, let’s start with some basics.

The U.S. Supreme Court in 1997 affirmed the state’s authority to civilly commit sexually violent offenders even after they have served out their criminal sentences.

The ACLU opposes civil commitment because it becomes an indeterminate sentence of confinement, but we are bound by the court’s decision and therefore have put our energy into minimizing the number of persons deprived of their freedom in this way and working to ensure the due process rights and fair treatment of those individuals who may be held by the state beyond their criminal sentences.

In 2003, Virginia civilly committed its first sexually violent predator, and by fall 2011 that number grew to 270, outpacing funding and space for the program.  News outlets were abuzz last year about the rapid growth of Virginia’s civil commitment program for sex offenders.  So did Virginia suddenly have a boom in its population of sexually violent predators?

Not exactly.  According to the Joint Legislative Audit and Review Commission’s (JLARC) 2011 report (pdf), Virginia in 2006 changed its program in two ways that led to an exponential rise in civil commitments.  First, it increased the number of sex offenses for which an offender could be reviewed for civil commitment from four to 28.  Second, the state switched to the Static-99 assessment instrument, which JLARC notes, “may overestimate the risk of future re-offense.”

The ostensible goal in running the civil commitment program is to confine those sexually violent predators who pose the greatest threat to society in hopes of rehabilitating them.  If the assessment tool greatly overestimates the risk an offender might pose, then the state is unnecessarily depriving too many people of their freedoms.

Fortunately, state legislators seem to have taken JLARC’s recommendation, and this past session amended the law to provide for a new assessment tool granting more discretion to professionals to determine who is likely to recidivate.  No predictive assessment can be wholly accurate, but this change should be a step in the right direction.

In addition to cutting costs for the program by reducing the number of individuals being committed, the state is looking into privatizing the facility.  According to the Washington Times, two companies, The GEO Group and Liberty Healthcare Corp., have already submitted proposals.

Cutting costs by doing a better job of evaluating prisoners is a good idea.  Cutting costs by privatizing facilities is not.  First and foremost, punishment for a crime in which someone is deprived of his or her freedom is a quintessential state function, and only the government should be in charge of that.  No one other than the state can imprison you, and no one other than the state should be overseeing imprisonment.

Second, unlike state-run facilities, the bottom line for for-profit prisons is to make money, and the best way to do that is to cut costs.  Studies show that private facilities, for example, have higher staff turnover, less experienced staff, and often fewer staff than state facilities.

As a result, for-profit prisons may be associated with higher levels of violence toward prisoners.  In Mississippi, for example, the ACLU and the Southern Poverty Law Center filed a lawsuit against GEO and others for “a pattern of horrendous physical and sexual abuse by security staff, use of prolonged solitary confinement, abuse and neglect of mentally ill youth, and failure to provide basic mental health care.”

Liberty Healthcare Corp. also has a checkered past.  At a Florida Civil Commitment Center run by the private company, “the facility’s safety director and safety manager erased or destroyed video evidence after a resident – placed in solitary confinement after threatening to burn a female worker – was then inexplicably allowed to roam the building, after which he climbed on to the roof and jumped off.”

Neither company’s offer sounds like a good decision for Virginia.  Privatization is a bad idea in principle, and the practical results are typically bad, too.  Let’s hope that in the end our legislators are as wise in rejecting privately run facilities as they were in accepting better tools for making more accurate assessments of prisoner’s future dangerousness.

Read the ACLU’s Report, “Banking on Bondage: Private Prisons and Mass Incarceration.”

ACLU Infographic on Mass Incarceration: https://www.aclu.org/combating-mass-incarceration-facts-0

Richmond, VA – The ACLU of Virginia today issued a statement criticizing members of the House of Delegates’ for their refusal to appoint Tracy Thorne-Begland as a Richmond General District Court judge because he is openly gay.

After receiving endorsements from the courts of justice committees in both the House of Delegates and the Senate, Thorne-Begland, who is currently chief deputy commonwealth’s attorney for the City of Richmond, appeared to have strong bipartisan support throughout the legislature.

According to news accounts, however, last minute lobbying from the Family Foundation and Del. Robert G. Marshall, who expressed concerns that Thorne-Begland’s sexual orientation would influence his judicial decisions, turned the tide.

In the end, Thorne-Begland received only 33 of the 51 votes needed in the House of Delegates to secure the judgeship.

Statement from Kent Willis, Executive Director, ACLU of Virginia

            The ACLU of Virginia does not take a position on judicial appointments, and in that tradition we were neither for nor against the appointment of Thorne-Begland to the Richmond General District Court.  However, we vigorously oppose any governmental process in which stereotyping based on race, gender, religion, disability or sexual orientation is involved.  By all accounts, Mr. Thorne-Begland’s appointment would have been approved were he not gay.

            At one time or another, the ACLU of Virginia has found common ground with almost every legislator, and we have worked hand in hand with the most socially conservative groups in the state when our goals are similar.  But everyone involved in this ugly episode should be ashamed of themselves.  It is bad enough that Virginia has generally taken the slow road to LGBT equality, but it is even worse for state officials to exercise such appallingly disgraceful bigotry in such an important government function.

Contact: Kent Willis, Executive Director, 804-644-8022

Richmond, VA – The ACLU Voting Rights Project and the ACLU of Virginia today filed a federal lawsuit challenging the Virginia law that imposes a state residency requirement on persons who circulate ballot petitions for presidential candidates who are not members of major political parties.

“Circulating petitions for candidates is at the core of our constitutionally protected right to free speech,” said Katie O’Connor, staff attorney with the ACLU Voting Rights Project in Atlanta.  ”By limiting the right to circulate petitions, Virginia’s law infringes on the First Amendment right of political parties, petition circulators, candidates and Virginia voters.”

The ACLU represents the Libertarian Party of Virginia and Darryl Bonner, a Pennsylvania resident who often circulates petitions on behalf of Libertarian Party candidates in other states.  Each asserts that the restrictions violate the First Amendment right of free speech and association.

“People from out of state have every right to promote their political ideas in Virginia, and the government has no legitimate interest in preventing them from doing so by circulating petitions,” said ACLU of Virginia Legal Director Rebecca K. Glenberg.

Virginia Code Section 24.2-543 requires “non-party” presidential candidates who wish to be listed on a general election ballot to gather at least 400 signatures from each congressional district and a total of 10,000 from the entire state.   Individuals are considered to be non-party candidates if they or the organization they represent received less than 10 percent of the total vote cast in either of the two preceding statewide elections.  The signatures can only be collected by state residents.

A similar issue arose earlier this year when Republican presidential hopeful Rick Perry challenged a related Virginia law imposing state residency requirements on individuals who circulate petitions for presidential primary candidates.  In that case, a federal judge said that Perry had filed his lawsuit too late to expect a court remedy, but not before opining that the residency restrictions were likely unconstitutional.

The ACLU is seeking to enjoin the Virginia law so that the Libertarian Party of Virginia can use non-Virginia residents to gather enough signatures for its candidate to appear on the presidential ballot in November.  The deadline to collect the required 10,000 signatures is August 24.

Glenberg and O’Connor represent the plaintiffs.

A copy of the complaint filed in court today can be found online at: https://acluva.org/wp-content/uploads/2012/05/20120514VirginiaBallotAccessComplaint.pdf

A copy of the memo in support of preliminary injunction can be found online at: https://acluva.org/wp-content/uploads/2012/05/20120514VirginiaBallotAccessMemoPI.pdf

Contacts:

 ACLU (national): 212-549-2666

ACLU of Virginia: Executive Director Kent Willis, 804-644-8022

President Obama’s announcement today that he supports same sex marriage is causing a media sensation.  Yet, most of us have felt that, in his heart, he supported marriage equality all along.

Look at his history on LGBT rights.  First, he told the lawyers at the Department of Justice to stop defending the Defense of Marriage Act, a horrible federal law that defines marriage as only between a man and a woman.  Then he went after “Don’t Ask, Don’t Tell,” strongly supporting its repeal by Congress.  He has also advocated for passage of the Employment Non-Discrimination Act, which bans discrimination against gay men and lesbians by any employer with more than 15 employees.

In this context, Obama’s support for civil unions but not full marriage equality always struck me as being more about political timidity than his true feelings on marriage equality.

So why the change? And, why now?

What may be most remarkable about the president’s newly stated position on marriage for same-sex couples is the political landscape in which it occurs.  Whatever the president believes in his heart, making this announcement at this time an indication he and his political advisors believe that voters across the nation are ready to embrace complete equality for gay men and lesbians.

So in the future, when marriage equality is as accepted as racial and religious equality is now, the president’s statement may be viewed as a turning point in the struggle for gay rights—that moment at which a sitting president of the United States who was not immensely popular announced at the beginning of a campaign for re-election that he supports marriage for same-sex couples.

Almost everyone I know, including those adamantly against marriage equality, admit that it is inevitable, just as everyone realized at some point that the civil rights movement would result in laws banning racial discrimination.  There will be opposition — just ask LGBT rights advocates in North Carolina and Virginia — and it won’t happen overnight.  But it will happen.

There are those who say that words can win this battle.  Certainly nomenclature matters, and the more marriage is viewed as a personal decision, as an expression of commitment and support between two individuals, the more support it will have.

But in the end this is about equality under the law.  You will still find in this society a lot of people who do not believe the races, or the sexes, or even the different religions are equal.  But you will have a much harder time finding someone who will say that they shouldn’t be treated equally under the law.

That argument should – and will – apply to marriage for same-sex couples one day.  And, President Obama will get some credit for it, as he should.

Roanoke, VA – Rather than handing down a decision in the ACLU case challenging a Giles County policy that directs public schools to display the Ten Commandments, U.S. District Court Judge Michael Urbanski today sent the case to mediation.

Using unexpected reasoning, Urbanski suggested that the plaintiffs in the case and Giles County officials might be able to agree on allowing the displays to continue with an abridged version of the Ten Commandments in which the four commandments that contain explicitly religious directives are omitted.

The controversy began in late 2010 when the Freedom From Religion Foundation received complaints about the posting of the Ten Commandments alongside the Constitution in Giles County public schools, a practice that had been in place for years.

Over the next six months a public dispute ensued in which school officials removed the Ten Commandments, reposted them, removed them again, and ultimately posted them as part of  displays that also contain several documents relating to American history, including the Declaration of Independence, the Star-Spangled Banner, and the Virginia Statute for Religious Freedom.

After the school board ordered the Ten Commandments and American history documents to be displayed, the ACLU and the Freedom From Religion Foundation, in September 2011, filed suit on behalf of an anonymous student and the student’s parent.  In the complaint, the lawyers for the two religious freedom organizations argue that the purpose of Ten Commandments displays in Giles County schools, even in their new context alongside other documents, is still religious and therefore a violation of the Establishment Clause of the First Amendment.

A schedule for a mediation hearing before a federal magistrate judge in Roanoke will be decided on soon.

The plaintiffs, who are anonymous, are represented by ACLU of Virginia Legal Director Rebecca K. Glenberg and Dunn Fellow Thomas Okuda Fitzpatrick, Patrick Elliott of the Freedom From Religion Foundation, and Frank Feibelman, cooperating attorney for the ACLU of Virginia.  The complaint can be found online at http://acluva.org/wp-content/uploads/2011/09/20110913GilesCo10CsDoecomplaint.pdf

Contact: Kent Willis, Executive Director, 804-644-8022

Richmond, VA –  The ACLU of Virginia praised Governor Bob McDonnell for recent comments favoring reform of Virginia’s felon disenfranchisement law, but says he is wrong to wait for the General Assembly to act.

“Governor McDonnell continues to send out the most positive messages on restoration of voting rights of any Virginia governor in recent memory, and he should be praised for streamlining the restoration process,” said ACLU of Virginia Executive Director Kent Willis.  “But he, not the General Assembly, has the authority to initiate immediate reforms.”

The Governor is quoted as saying he will work with the General Assembly “to put together some structure for automatic restoration, particularly for some non-violent felons.”

“Under the Virginia Constitution, the governor, not the General Assembly, has control over the process for restoring voting rights of felons,” added Willis.  “Every legal expert who has looked at this issue in Virginia has concluded that the governor has the authority to institute reforms.  Furthermore, the General Assembly only has the power to amend the Constitution if it wants to make changes, a lengthy process that takes two separate legislative sessions and a referendum of Virginia voters.”

“In the same way that the governor changed the application process when he took office and promised to restore voting rights within 60 days for non-violent felons,” continued Willis, “he has the power to automatically restore voting rights for every single non-violent felon in Virginia.”

“If this is what the governor wants, then he should just do it,” added Willis. “He should also start the ball rolling to amend the Virginia Constitution, but that’s a three-year process that will be unfinished and still subject to multiple political variables when he leaves office.”

The ACLU of Virginia, along with scores of ministers, faith-based groups, the NAACP and numerous other state and local organizations have pressed for reform of Virginia’s felon disenfranchisement law.  In most states, the right to vote is automatically restored once felons, especially non-violent felons, have completed the terms of their sentences.  All felons in Virginia are banned from voting for life unless the governor restores their rights.  No state is considered worst than Virginia, and only three others – Kentucky, Iowa and Florida – have laws that are as punitive.

An estimated 375,000 people cannot vote in Virginia because they have felony convictions.  Recent governors, including McDonnell, have increased the pace of restoring voting rights for individuals, but they still issue only about 1,000 restorations a year.

For more information about Virginia’s felon disenfranchisement law, go to: http://www.restoreourvote.org/BriefingPaper.pdf

Contact: Kent Willis, Executive Director, 804-644-8022

Henrico County, VA –  Online critics have a free speech right to anonymously comment on the work of a Florida plastic surgeon,  according to a legal motion filed today in Henrico County Circuit Court.

Filed by Public Citizen and the ACLU of Virginia, the motion claims that a subpoena to compel internet provider Comcast to release the name of an online commenter should be quashed.

The controversy arose last year when dissatisfied patients of Dr. Armand Soto posted on www.RateMDs.com that the plastic surgeon did not live up to their expectations.  One patient complained that he felt his liposuction procedure resulted in larger love handles.

Claiming that the online comments constituted defamation and that the commenters had conspired against him, Soto last December filed a lawsuit in Henrico County against ten anonymous critics, alleging that “some defendants may be located within the Commonwealth of Virginia.”

The motion filed today by Public Citizen and the ACLU on behalf of one of the commenters says the First Amendment protects the commenters’ right to assert their opinions and that the suit improperly seeks to force individuals to litigate in a state that has no connection to them or the subject of the suit.

Soto’s lawyer, Domingo Rivera, previously filed at least one nearly identical suit.  In Rajagopal v. Does, Rivera sued in the same court on behalf of a California doctor unhappy about comments made about her practice stemming from a San Francisco newspaper article.

Public Citizen and the ACLU represented the anonymous speaker in Rajagopal.  After a motion to quash was filed, Rivera voluntarily dismissed that case.

“Dr. Soto and Mr. Rivera have abused the Virginia judicial system by bringing a meritless suit with absolutely no ties to the forum state,” said Greg Beck, a Public Citizen attorney representing the commenter. “Based on the nature of the allegations and Rivera’s track record, one could only assume that the suit was filed solely to chill the patients’ speech.  Soto is trying to coerce his patients to remove their postings.”

Added David Muraskin, another Public Citizen attorney representing the critic, “The court should not allow itself to become the go-to jurisdiction for physicians from across the country who are unhappy about online criticism. The meritless claims and the filing of the suit in Virginia warrants an award of sanctions against the plaintiff and his counsel in this case.”

“The criticism in question is entirely opinion – not fact – which is protected by the First Amendment,” said Rebecca Glenberg of the ACLU of Virginia, also an attorney on the case.

“The speech at issue addresses public concern regarding the performance of a physician,” added Glenberg, “and thus goes to the heart of the speech protected by the First Amendment. If people were allowed to sue over comments they don’t like, without the legal checks in place, it would have a chilling effect on free speech.”

A copy of the motion filed today can be found online at:  https://acluva.org/wp-content/uploads/2012/05/20120504Soto-v-Does-Motion-Quash.pdf

 Contact: Kent Willis, Executive Director, 804-644-8022

After learning that the ACLU and nine women who provided health and food services to the jail through a private contractor had filed a lawsuit over illegal strip searches, jail officials told the six women who still worked at the Portsmouth facility not to return.

According to Virginian-Pilot columnist Kerry Dougherty, “Watson told me Tuesday that everyone who works for him is liable to be strip-searched.  It’s all part of his effort to ‘maintain the integrity of the jail.’”

The Virginian-Pilot also reports Watson as saying, “If anybody doesn’t like the policy, look for a new job.”

In their request for a temporary restraining order against the sheriff, ACLU attorneys say the employees have a First Amendment right to file a lawsuit and may not be removed from work for doing so.

“The sheriff is only compounding his problems by preventing the employees from returning to work,” said ACLU of Virginia Executive Director Kent Willis.  “We hope the court will act swiftly to allow these six women to continue to do their jobs without harassment from jail officials.”

According to complaints filed last Friday in the federal court in Norfolk, Portsmouth Sheriff Bill Watson ordered the strip searches in late April 2011 as part of an ongoing investigation of drugs being brought into the jail.  At the time, each of the workers was an employee of Correct Care Solutions or Aramark Correctional Facility Food Service, private companies that supply health and food services to the jail.

Before being allowed into the jail on the day of the searches, each woman was required to remove her outer and under garments and be subjected to a visual search of her cavities.  All were told that if they did not consent to the search they would be forced to leave the premises and their clearance to access the jail would be revoked.

Representing the nine women are ACLU cooperating attorneys David Morgan and Daniel Trimmer from Cravens & Noll, P.C. in Richmond, ACLU of Virginia Legal Director Rebecca K. Glenberg, and ACLU of Virginia Dunn Fellow Thomas Okuda Fitzpatrick.

A copy of one of the nine complaints filed in court Friday may be found at https://acluva.org/wp-content/uploads/2012/04/20120427Complaint-NanVollette.pdf.

Contact: Kent Willis, Executive Director, 804-644-8022

The ACLU of Virginia and Del. Bob Marshall may be on opposite sides on most issues.  But we both know when we’re on the same side, and when we are we have no qualms about working with each other to accomplish our mutual goal.  It’s simply a matter of a wise politician working with a wise advocacy group.

During the 2012 session, Delegate Marshall introduced HB 1160, which prohibits state and local entities from assisting the federal government when it indefinitely detains U.S. citizens under the National Defense Authorization Act in a manner that violates Virginia law.   We agreed with the bill, energized our grassroots lobbyists to support it, and Governor McDonnell recently signed it into law. 

As you can see from the blog below by National ACLU staffer Allie Bohm, opposition to the NDAA is coming from the left, right and middle of the political spectrum, and momentum is building in a variety of states and localities to send a message to Congress to fix the law.

In the DC area? June is Torture Awareness Month.  The ACLU is joining with the National Religious Campaign against Torture (NRCAT) and other human rights groups for a march against Torture, Guantánamo and the NDAA in Washington, D.C. on June 24. We hope you’ll join us in this action.

One Thing Maine, Virginia and Arizona Have in Common: Opposition to the NDAA

Originally posted by Allie Bohm, at ACLU’s Blog of Rights on April 27, 2012

This week, the House Armed Services Committee has turned its attention back to the National Defense Authorization Act and began working on this year’s bill. You remember last year’s perversion that, for the first time in American history, codified indefinite military detention without charge or trial far from any battlefield? State legislators and activists and concerned citizens on the right and the left — and everyone in between — haven’t forgotten.

On Wednesday, Arizona’s state legislature sent a bill opposing the detention provisions in the NDAA to their governor. And, last week, a similar bill became law in Virginia, about a month after Maine passed a joint resolution to the same effect. Add to that list the cities and counties that have passed resolutions urging Congress to repeal the problematic provisions in the NDAA — Fairfax, Calif.; Santa Cruz, Calif.; El Paso County, Colo.; Fremont County, Colo.; Moffat County, Colo.; Weld County, Colo.; Cherokee County, Kan.; Northampton, Mass.; Alleghany County, N.C.; Macomb, N.Y.; Elk County, Pa.; and New Shoreham, R.I. — and the map starts looking awfully full. This is not a red state issue or a blue state issue or a purple state issue. A few of the resolutions are under-inclusive, but their message is still clear: across social and political lines, no one likes the idea of indefinite detention or mandatory military detention far from any battlefield. (Okay, except maybe Sen. Lindsey Graham (R-S.C.) and a few other misguided members of Congress.)

Will your town, city, county, or state be the next to speak up? You can make that happen. Check out our model legislation and activist toolkit for legislative language, talking points, and tips to help you get started. Our bill sends a message from your local legislative body to Congress that the indefinite military detention provisions of the NDAA should be repealed. The model legislation prohibits state and local employees from aiding the federal armed forces in the investigation, arrest, detention, or trial of any person within the United States under the NDAA. It also sends a message from your legislative body to Congress that the 2001 Authorization for Use of Military Force should expire at the end of the war in Afghanistan so that the government cannot continue to use the AUMF as justification for its claims that war is everywhere and anywhere and that the president can order the American military to imprison without charge or trial people picked up far from any battlefield.

And while you’re at it, head over to our Action Center and urge your member of Congress to fix the NDAA. The time is now. This year’s NDAA provides the perfect opportunity for Congress to fix last year’s debacle. And, we need you — and your state legislators and city council members — to speak up if we’re going to get Congress to finally do the right thing.