08 March 2010

House Bill 1394

No. I DO NOT know what the final disposition of HB1394 will be. HB1393, which was basically the same bill, was voted down in committee after the governor asked for it and the majority leader introduced it. Five days later it was reintroduced by a very junior Delegate - again at the governor's request. Here's the history as the General Assembly's website has it this morning.
Summary as introduced:

Appointment of counsel; imposition of penalty of incarceration in certain misdemeanor cases. Provides that if a criminal charge against an accused is a misdemeanor or in a class of misdemeanors the penalty for which may be incarceration, a penalty of incarceration may be imposed and an attorney appointed by a court in the case of indigence if the prosecuting attorney advises the court that incarceration remains an option in such class of cases, or in the instant case. The bill also provides that if the prosecuting attorney advises the court that he waives the option of the imposition of a sentence of incarceration in such case or class of cases, the court shall try the case without appointing counsel, and in such event no sentence of incarceration shall be imposed.

Full text:
02/24/10 House: Presented and ordered printed 10105541D pdf
03/03/10 House: Committee substitute printed 10105748D-H1 pdf

02/24/10 House: Introduced at the request of Governor
02/24/10 House: Presented and ordered printed 10105541D
02/24/10 House: Referred to Committee for Courts of Justice
02/25/10 House: Assigned Courts sub: #1 Criminal
03/03/10 House: Reported from Courts of Justice with substitute (14-Y 5-N)
03/03/10 House: Committee substitute printed 10105748D-H1
03/03/10 House: Referred to Committee on Appropriations
03/04/10 House: Assigned App. sub: General Government
I cannot find a similar bill in the Senate and, as the Senators and Delegates seem to have extremely different views of how to balance the budget, do not know if it could pass a vote in the Senate. We'll know in the next week or so.

And now to address all the points which I've been told by various people over the last two weeks:

Yes, I realize this law will require Commonwealth Attorneys to know everything about a case at the initial court appearance, which will probably mean that smaller offices will just have to leave blanket notices with the judge that they will prosecute everything. Larger offices may be able to assign one assistant commonwealth attorney as some sort of intake officer either sitting at the magistrate office or getting a list every morning from the magistrate and calling officers trying to get information on the cases.

Yes, I also realize what this will do to the defense bar. If it works as intended it will cut out a lot of low level cases which will make it even harder for new attorneys to start doing criminal defense work. It will also make it harder for people who rely on the misdemeanor appointed cases to flesh out their income and force more people to try to get felony cases, thus making money scarcer for everyone. Yes, I've heard the rumor that waivers are not being funded this year, meaning that felonies - especially jury trials and serious offenses such as non-capital murder - are going to become money drains again (subject once again to the hard fee cap). No, I do not know how long it will take for the lawsuit to gear back up.

Yes, I realize this will end up with a lot of people convicted of 1st or 2d offenses without knowledge that a subsequent conviction will carry mandatory jail/prison time.


Interestingly, this bill now comes with an expiration date: 01 July 2013.

[addendum] Generally I would avoid something like this like the plague because it is too political. However, I keep getting the same questions and arguments over and over about this bill, so I wanted to put it out what little knowledge I have for everyone to see. I do not have any great insider knowledge about any of this and suggest that you go to one of the Virginia political blogs if you are looking for an indepth political discussion of this matter.

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