by Frank Knaack, Director of Public Policy and Communications
We’ve just passed the halfway point of the 2015 Virginia General Assembly session and we’ve got some good news and some bad news. Here’s a snippet.
First, the good news. Legislators on both sides of the aisle and in both chambers are embracing the need to rein in the surveillance state. Legislation has passed both the House and Senate that would require law enforcement to obtain a warrant before they could use a drone to spy on Virginians. In addition, legislation has passed both the House and Senate that would prohibit law enforcement from using automatic license plate readers to build massive databases of innocent Virginians’ movements. Under the proposed legislation, law enforcement would be required to purge all data collected on the movements of innocent Virginians after seven days, unless the data is part of an active investigation. These bills have now moved to the opposite chamber (Senate to House and vice versa) for consideration. Law enforcement representatives (sheriffs, police, commonwealth’s attorneys and their statewide associations) have redoubled their efforts in opposition to these bills. There is no guarantee they will get to the Governor’s desk or what will happen when they do.
On the criminal justice front, we’ve made some progress, although it may be short-lived. The House voted overwhelmingly (92 – 6) in favor of legislation that would curb policing for profit. Civil asset forfeiture allows law enforcement to seize and keep a person’s property if law enforcement asserts that the property has a “substantial connection” to a drug offense, regardless of whether a person is convicted of or even charged with a crime. Once law enforcement makes this assertion then the burden is on the property owner to prove they didn’t get the property through illegal means. HB 1287 would simply require law enforcement to obtain a criminal conviction before they can seize and keep a person’s property. This legislation is being strongly opposed in the Senate by the McAuliffe administration, the State Police, local law enforcement and prosecutors. There is no guarantee it will pass.
We also worked to pass out of the Senate legislation that would raise Virginia’s felony larceny threshold (the amount that determines whether a person is charged with a felony or misdemeanor for theft). The Senate voted 30 – 8 to support legislation that would raise the threshold from $200 to $500. Virginia has the lowest threshold in the country. As a result, Virginia is expending its limited resources prosecuting and incarcerating people for these low level felonies, resources that could be better directed to programs that keep communities safe. For example, a felony for a low-level offense like theft of $300 can destroy a person’s family, employment and educational prospects, and more, thereby significantly increasing the chance that a person will remain involved in the criminal justice system. We’ll now work to convince the House of the need to bring this common sense reform to the Commonwealth.
We’ve also seen legislators begin to recognize that drug use is a public health, not criminal justice issue. Both the House and Senate have passed legislation that would provide a Good Samaritan defense to an individual who sought or obtained emergency medical attention for themselves or for another person because of a drug- or alcohol-related overdose. This is a humane, lifesaving approach to drug overdose.
We’ve also defeated a number of bills that would have restricted the civil rights and liberties of Virginians. For example, we defeated legislation that would have created a criminal sexting offense, which would have placed approximately 40-50% of Virginia youth in the path of a criminal conviction. As we wrote in the Richmond Times Dispatch, sexting is best addressed by parents and educators, not prosecutors and judges. In addition, we defeated legislation that would have permitted Virginia businesses to deny services to individuals because the customer is LGBT. We also stopped numerous bills that would have restricted a woman’s access to safe, legal abortion.
Now, the bad news. At Governor McAuliffe’s request, Senator Saslaw introduced legislation that would allow the Department of Corrections to contract with pharmacies to make up drugs for use in execution by lethal injection. In addition, the bill would exempt from public disclosure laws both the manufacturer and the materials and components used to create the drugs. As we told the Senate, the awesome power of the government to kill in our name must be accompanied by transparency and accountability, both of which would go away if this bill becomes law. Unfortunately, this bill passed the Senate and is awaiting consideration from the House.
We’ve also seen legislation pass the House that would allow a deliberative governmental body, such as a city council, to adopt a policy that permits an elected official, chaplain, or invited speaker to deliver a sectarian prayer before the meeting of the government body. This legislation would enable the government to pick sides on questions of faith – it would undermine the basic constitutional right of all Virginians to not feel like an outsider when attending a governmental meeting.
Finally, the House defeated legislation that would have created a fairer assessment of a poor person’s true ability to afford counsel. While the U.S. Supreme Court has ruled that no one should face loss of liberty without access to counsel, it left to the states the power to determine who is too poor to afford counsel. Under Virginia law, individuals are not eligible for appointed counsel unless their available funds are equal to or below 125 percent of the federal poverty guidelines. This means that an individual can make less than the minimum wage, qualify for food stamps, and still not qualify for appointed counsel. Our legislation would have created a threshold that took into account the cost of counsel as well as the individual financial situation of the defendant, including expenses such as student loans, child support, and room and board. While disappointed that the legislature failed to ensure that all individuals facing loss of liberty have access to counsel, we were pleased for the opportunity to raise the issue and educate lawmakers about Virginia’s constitutionally deficient system. And, we’ll continue working to remedy this problem.
The 2015 General Assembly ends on February 28th. Between now and then we have our work cut out for us.
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Check out our Session Report (updated weekly) for a complete list of our priority legislation.
ACLU-VA's 2020-2021 Annual Report