IN THE NEWS:

Governor Glenn Youngkin is creating a new Office of Regulatory Management, designed to reduce regulatory requirements by 25%. Former Trump EPA Chief Andrew Wheeler will head the office.

Also in the news: Prosecutors in nine Virginia counties have announced that they will not prosecute new restrictions on abortion--but some lawmakers are pointing out ways that state Republicans could get around the local authority.

Also in the news: Black teenagers are 2.6x more likely to be referred to the juvenile justice system than white teenagers; that creates a disproportionate burden on young people trying to escape poverty. Policies designed to eliminate court fines and fees for juveniles could be a step to help families in need.

GUEST:

Shawn Weneta of the ACLU of Virginia explains how thousands of Virginia's incarcerated people earned early release-- but with a recent budget amendment passed by the General Assembly, around 8,000 inmates with violent offenses have lost the opportunity.

Learn more at https://linktr.ee/JacklegMedia

Sponsored by the Substance Abuse and Addiction Recovery Alliance of Virginia

Michael Pope

I'm Michael Pope.

Thomas Bowman

I'm Tom Bowman.

Michael Pope

And this is Pod Virginia, the best podcast on Virginia politics, if you don't count all the rest of them.

Thomas Bowman

Later in the show, we'll talk to Shawn Weneta at the ACLU of Virginia. He'll explain what's happening to thousands of inmates in Virginia who earned an early release, but they now have the rug pulled out from underneath them.

Michael Pope

You'll definitely want to stick around for that conversation. But first, let's get to the news. Governor Glenn Youngkin is creating a new Office of Regulatory Management. Its goal is to reduce regulatory requirements by 25%. And the Governor has tapped former EPA Chief, Andrew Wheeler, to oversee the effort.

Andrew Wheeler

There are other efforts across the country, at the federal level, to cut the number of regulations. And that's kind of arbitrary. What we're focused on is going to be reducing the number of regulatory requirements.

Michael Pope

Now, you may recall that name, "Andrew Wheeler," he was Youngkins choice for Secretary of Natural and Historic Resources. Senate Democrats rejected the nomination. And now he's got a new gig in the administration, one that does not need Senate confirmation. Now, Wheeler, in a telephone conversation with me, says the idea here is not about reducing regulations, it's about reducing regulatory requirements. And he's pending this, in fact, the entire idea behind going after regulatory requirements, is crafted around a pilot project lawmakers created during the Northam administration.

Andrew Wheeler

We looked at the results of the pilot and the results of the pilot, one agency reduces 27% and the other 14%.

Michael Pope

So the pilot project he's talking about there was created by a bill that was introduced by Republican Delegate Michael Webert back in 2018. And it directed the Department of Planning and Budget to administer a three year regulatory reduction program aimed at reducing regulatory requirements by 25%. Now that bill, the Michael Webert bill back in 2018, it passed with an overwhelmingly bipartisan vote, it was unanimous in the Senate, and in the House it was 96 to three, there were only three House Dems to vote against it, Marcus Simon, Ken Plum and Lee Carter. So Thomas, what do you make of this new office? Are we going to see regulatory requirements slashed by a quarter in agencies across Virginia?

Thomas Bowman

Look, this is a really interesting nuance, and it's worth explaining to people, because you know the difference between regulations and the regulatory requirements. So the regulatory requirements are the things within the regulation itself, so they're talking about reducing that and I would say on its surface, there's a reason it's so...they got so much bipartisan approval, Michael. A lot of our regulations are not, necessarily, up to date, not up to the best science, not up to the best practices, and in many ways can find themselves outdated and Virginia is sometimes can feel like, "The Land Before Time," in a way when it comes to how government does things. So there's certainly merit to doing this. And I guess from that perspective, you know, Glenn Youngkin's found the right man for the job in Andrew Wheeler. By the way, it's worth pointing out, Michael, that there's a lot of skepticism among Democrats that the reason for this is because Youngkin is trying to go after Reggie, despite not having legislative approval to get rid of Reggie, and Michael Town, our friend and the Executive Director of the Virginia League of Conservation Voters, said in a statement published in The Mercury, that it's clear what comes next, a Virginia where polluters benefit and our environment suffers. And, you know, there's a lot of focus on the arbitrary measurement here of 25%. And calling it an arbitrary promise. And, you know, I certainly share those concerns about the arbitrary nature of just setting a 25% goal. But I think what we're going to find out is, ideally, there's a, there's going to be a streamlining of this process. And you can't really go after things that are set, at least in legislative stone, by the General Assembly.

Michael Pope

So on the arbitrary nature of that 25 number, I asked Wheeler about that in our conversation, and he pointed to this bipartisan bill here back in 2018, that it had the 25% baked into it, and it had a lot of Democrats voted in favor of it. So, you know, he was saying he was saying, well, if it is arbitrary, it's it's an arbitrary number that already has bipartisan approval. You know, when I talk to people who are critical of this, they point out that this whole effort is premised on the idea that there are too many regulatory requirements right now. What if that's not true? What if we've got the right number of regulatory requirements?

Thomas Bowman

Or what if there's not enough?

Michael Pope

What if there's not enough? Yeah, I mean, like, you know, another potential criticism of this that one of the state senators I spoke to about this said, was, you know, regulations are there to keep us safe. And so if you start undermining regulations and regulatory requirements, there is a danger that we won't be as safe as we were when they were there to begin with. So, you know, the this whole thing is premised on the idea that we have too many regulatory requirements right now, and they need to be gotten rid of. I actually did ask Wheeler about that, and he said that, you know, on the on the campaign trail, the Governor heard from lots of people, that Virginia's regulatory requirement is too restrictive, has too many mandates on people, and that it needs to be reduced. And, you know, Youngkin did talk about this on the campaign trail, and this office is an effort to take that campaign promise and make it a reality.

Thomas Bowman

Yeah. And he's certainly well within his right to do so, having won the election. And, you know, Michael, I've told my Democratic clients, for years, that it's not about more regulation, or less regulation. That's not a really helpful way to think about this problem. A much better thing to focus on is smart regulation. And so, if anything, like I guess I'm not surprised that it got a bipartisan vote, such a tremendous bipartisan vote, from the House and unanimous in the Senate. I just think that people's heads are not where they need to be right now, when it comes to focusing on the regulations. They need to be crafted smartly, and they need to be applicable to what the current situations are, and and more or fewer regulations is going to be dependent upon this specific situation. And how smartly do you craft those regulations? So, you know, I, personally, don't care that it was bipartisan. I think focusing on a number in the first place was the wrong move. They should be focusing on streamlining regulations, but also creating new ones that need to be created.

Michael Pope

Well, we will find out as this office goes on about its work. Okay, so returning to the debate on abortion, Virginia is about to have a clash over prosecution. Commonwealth's attorneys in nine jurisdictions say they will not prosecute new restrictions on abortion. Those nine jurisdictions are Alexandria, Arlington, Charlottesville, Fairfax, Henrico, Loudoun, Norfolk, Portsmouth, and Richmond. Fairfax County Commonwealth's Attorney Steve Descano says elected prosecutors have that right.

Steve Descano

Local prosecutors every single day, in every courthouse in America, make the decision on what cases to go forward with and which cases not to go forward with. I would be doing the same thing with abortion that I previously did with marijuana, which was to use that discretion to forego prosecuting a clash of crimes.

Michael Pope

But Senator Scott Surovell, a Democrat from Fairfax County, and a former guest on our podcast, says lawmakers opposed to abortion could craft legislation in a way that bypasses the discretion of local prosecutors to carry out any new law that they end up passing.

Scott Surovell

That could include creating some kind of a special Abortion Task Force to go after women, if there's local prosecutors that are unwilling to take on these cases. I think people- voters should assume that that's a definitive possibility.

Michael Pope

So Surovell pointed out that there's already a precedent for this. Virginia already has a Medicaid Prosecutor Task Force and lawmakers could create an Abortion Prosecutors Task Force and run it out of the office of the Attorney General, removing the discretion from those nine Commonwealth attorneys who already said they won't prosecute abortion cases. So Thomas, do you think when Republicans get around to writing the details about how their abortion ban or abortion restriction will work, that they would write the enforcement part of this in a way that gives the Attorney General's Office the ability to prosecute these cases and take it out of the hands of people like Steve Descano?

Thomas Bowman

Well, it's certainly far more likely now that somebody has voiced the quiet part out loud. You know, Michael, it's too soon to say what that bill would look like. And by the way, they're probably going to have multiple opportunities to push and to write and pass a bill. Because as long as the Democrats are in control of the Senate, it's not going to pass, Virginia is not going to eliminate, or pass, any of these proposed abortion restrictions, no matter what they might be. The risk comes, of course, if Democrats lose the Senate, and fail to take back the House chamber. If that happens, then yeah, abortion is at risk. And if the Republicans have a large enough majority, they could take it out of the hands of these local prosecutors. And, you know, while I'm sympathetic to the emotion there, and and to a local prosecutor who wants to try to avoid doing harm, be very careful, because this is a very dangerous game, because I can imagine if the shoe was on the other foot, Democrats would not want Republican Commonwealth attorneys, flaunting the will of the General Assembly so publicly and and there is a game to play here. And I get like Descano is flirting with running for Attorney General. And there's only so many ways you can keep your your name in the public eye, Michael, but-

Michael Pope

It seems like he wants to run for Attorney General.

Thomas Bowman

You know, this is one of those many situations where have really experienced political hand would say, "Hey, shut up, do not say this quiet part out loud, don't give the Republicans ideas." Because I mean, Surovell is absolutely correct. The General Assembly, if the Republicans have the majority, can write that bill however it is they want to write that bill, and they can take Descano, and similarly aligned prosecutors, out of the conversation entirely.

Michael Pope

As a journalist, I'm in favor of people saying the quiet part out loud. So I would encourage all of our listeners not to shut up, and to say these things, and to have a discussion. And I think having this discussion out in public, and voicing all the potential angles on this, is a very important part of this whole thing.

Thomas Bowman

Yeah, perhaps, but if that never got voiced out loud, Michael, then it's less likely for the Republicans to craft a bill that takes those potentially problematic local prosecutors out of there.

Michael Pope

So there's another part of this that's worth thinking about, which is this is part of a theme that we're now talking about abortion, but then you also heard Descano talk about the war on drugs, you know, the failed, racist War on Drugs. So that was a time period, you know, in when a bunch of prosecutors were getting elected on the platform of not carrying out Virginia Law, sort of making the determination that Virginia Law is broken. And, you know, as elected prosecutors, these Progressive Prosecutors For Justice is the organization they ended up creating, that they as a group would not be prosecuting laws that they felt were unjust, and at the time, those were drug laws. Now we're getting into a point where they're potentially abortion laws. And there's an interesting counterforce here because that discussion about Progressive Prosecutors For Justice not enforcing drug laws, created a reaction where you had the newly elected, relatively newly elected, Attorney General Jason Miyares said, "Put me in the game, coach. You know, I want to I want to enforce these laws. If Fairfax County Prosecutor is not going to enforce drug laws, I want to do it." He tried to get the General Assembly to give him authority to step in those cases, and the General Assembly said no. So there is this effort out there to figure out a way for the Attorney General's Office to step in, in cases where some people think your local prosecutor is not taking the action he or she should be taking.

Thomas Bowman

Yeah, and like I said, it's a dangerous game of Whack a Mole, because it's such a subjective, interpretation of the role. And yeah, nobody disputes prosecutorial discretion. But there's a difference between quietly exercising prosecutorial discretion, and then flaunting it, because you're trying to raise your profile for a political campaign.

Michael Pope

Alright, one more item to talk about before we take a break. It's the latest installment of how our court system is set up in a way that disproportionately harms minorities. You've heard this song before. Black teenagers are 2.6 times more likely to be referred to the juvenile justice system than white teenagers, according to state court records. Briana Jones at the Commonwealth Institute says that creates a disproportionate burden on young people trying to escape poverty.

Briana Jones

We're asking, at a disproportionate rate, Black youth and their families, to fund our courts, basically. And that's unfair. So it's not as much of a punitive measure as people think it is.

Michael Pope

She says eliminating court fines and court fees for juveniles, could be a step in helping families in need. Phil Hernandez at the Commonwealth Institute says one of the best things lawmakers can do is lowering the Statute of Limitations on court debt.

Phil Hernandez

The debt that you owe can follow you for many decades, and Virginia has at least 30 and can be as many as 60 years. And so as you're thinking about a young person in Virginia, who's just trying to find their way, and get started, and find a career and all that, and having them battle with this debt, and their family trying to manage it, it places an incredible burden on entire family systems.

Michael Pope

The Joint Legislative Audit and Review Commission, JLARC, has several recommendations for lawmakers on this issue, including the creation of a state operated system for juvenile public defenders. And then of course, ultimately, reducing court debt for juveniles caught up in the court system. Thomas, this sounds like it could be a bipartisan type of effort. You got a JLARC report, saying a bunch of things that could be crafted into the law, including the system of juvenile public defenders. There's also a JLARC recommendation to remove fees charged to families of young people who receive a court appointed attorney. So those are fees you can get rid of. And it's not like this money is all that significant. I mean, like, are- do the local governments really need this money here, that they're taking from these families? I doubt it. Do you think this might be the kind of thing that might get bipartisan support in the future General Assembly session?

Thomas Bowman

Yeah, it actually could. And, Michael, I think back to my time when I was in college, I spent my summers working at a law firm that, among other things, handled juvenile cases. And it was my experience that everyone we dealt with, was in the wrong place at the wrong time, hanging out with the wrong crowd, getting caught doing something that most people have done themselves or, or, you know, get caught up in the moment because they have hormonal imbalance in their brain being a teenager. And so there's a lot of reform opportunity for the juvenile justice system. So if JLARC has identified these relatively low hanging fruits as something to do. And by the way, I think another thing that they could do is get SROs out of schools, especially, when they're being used to, to mainline these poor kids into the justice system, the injustice system entirely.

Michael Pope

Yeah. And then so I can see that, you know, the the arguments that might be made against some of these JLARC recommendations would be two things. One is, you know, this fees and fines are there for a reason, it's to compel behavior. You heard there from the Commonwealth Institute person that this is not as punitive as people think it actually is. And there probably are better ways to compel behavior than hitting people up for money.

Thomas Bowman

Yeah.

Michael Pope

So the other part of this is financial. I mean, if you look at local government revenue, the average locality in Virginia gets point 5% of its revenue from these kinds of court fines and fees. So like this is money that's not significant in most jurisdictions, less than a percent of their revenue. So it's not like they're even depending on this money, and it's really harmful to these families.

Thomas Bowman

Well, and that's it thing, you know, think about a speeding ticket that $250 being the fine. Well, if you only make 15, 20, 30 grand a year $250, you know, due within a month or so, is a lot of money that you may not have, and you can't get easily. But if you've got, you know, if you've got hundreds of thousands of dollars of income, or millions of dollars of income a year, then $250 is the cost to park illegally, you know, like, okay, whatever. And so there's not actual justice and these financial disincentives, here. It's based off flawed theory in the first place.

Michael Pope

And then ultimately, you know, the idea of balancing the books to finance the court system on the backs of Black teenagers who are trying to escape poverty...nobody wants to stand behind that.

Thomas Bowman

No. And of course, at the time, it was set up, that was the feature and not a flaw. But this is not our current generation now. And I don't think we need to be defending things that our grandparents, or systems that our grandparents and great grandparents set up. Let's make it better and make it work. You know, Michael, there's a lot to unpack there. But let's take a break. When we get back. We'll be joined by Shawn Weneta of the ACLU, who can talk about this at length, because he's gonna explain why inmates waiting to be released are just now learning they'll be locked up much longer than expected. We'll be right back.

Michael Pope

And we're back on Pod Virginia. We're gonna go behind bars now to expose a bait and switch operation recently perpetrated on thousands of inmates in Virginia.

Thomas Bowman

The General Assembly passed a law in 2020 that allowed inmates to get out early, if they earn sentence credits for good behavior. Thousands of inmates were ready to take advantage of that new law, and rejoin their families and communities.

Michael Pope

But the rug was pulled out from under them last month when the General Assembly approved a budget amendment for the Governor that excluded about 8000 inmates with violent offenses, people who have paid their debt to society and were planning to start new lives.

Thomas Bowman

Now those lives are on hold, leaving criminal justice advocates to wonder what's next? Here today to help us understand what's happened and why, and what to do next, we're joined by a policy strategist for the ACLU of Virginia. Shawn Weneta, thanks for joining us.

Shawn Weneta

Thanks for having me. It's good to be here.

Michael Pope

Great. We really appreciate you joining us. Let's start with the big picture here. What is an earned sentence credit, and how does this system work for inmates in Virginia?

Shawn Weneta

Well, it's a great question. The the Earned Sentence Credit System is a system that was put in place in 1995 under the Allen administration. It was in line with what's called, "truth in sentencing," which made people who are incarcerated serve 85% of their sentence. So a person could earn about four and a half days off of their sentence for every 30 that they serve, provided they met certain benchmarks. But it, sort of, got in line with the, "tough on crime," ethos of that era. So an earned sentence credit is, effectively, a day off of your sentence for doing the right things while you're incarcerated. It's good behavior, participating in rehabilitative programming. The Earned Sentence Credit System has been in place, again, for about 27 years now. And it's been fiercely defended by members of the General Assembly since that time.

Michael Pope

And then what happened in 2020, this was pretty recently expanded, right?

Shawn Weneta

Correct. So over the years, there have been proposed expansions of the of the Earned Sentence Credit System and they've all failed. However, in 2020, both Republicans and Democrats, brought forward expansions of this Earned Sentence Credit System. They agreed on a bill, they conferenced the bill, because it was a little bit different coming out of both chambers. The bill went to conference and they came to a conference, a reconciled bill that was approved on a bipartisan basis in both chambers. And ultimately, what the bill did was create a small expansion, allowing for an additional 20% to be earned for a small category of nonviolent offenses. So that's what the bill- what happened in 2020. When it passed, it also had what was called a, "delayed enactment," on it. So was going to take two years to implement. So the Department of Corrections could update their databases and recalculate people's time. It also was going to allow them to reinforce their reentry system, and make sure that there was enough probation officers in the community to properly supervise people that were going to be released, as well as make sure that there was job training, and rehabilitative and therapeutic programming in place, and that people had places to go when they went home. So it was really just giving the department, and the agencies in Virginia, time to to make sure that the people that benefited from the small expansion, were going to have the appropriate resources to be successful when they returned home.

Thomas Bowman

So this bill, initially, was bipartisan, passed with members of the Republican Party as active participants in crafting the bill. And then, an effort to repeal this expansion failed in both chambers, in the House and the Senate, in this past session, but a Governor's amendment to the budget, was able to do the work that the failed laws couldn't. So what did the Governor do and why did he do it?

Shawn Weneta

Part of those attempted repeals during the regular session this year, was a smaller repeal to just address people with what was called either, "paired offenses," or, "concurrent offenses." I've also heard it called, "mixed charges," but somebody with that has both a violent crime, and a non violent crime, would be eligible to earn these expanded credits, just on their nonviolent offense. That's what the bill did. And what the Governor's Amendment did, and what partial repeal that failed earlier tried to do, was to take that opportunity away from people who had these paired offenses. And an example of that is somebody that perhaps has a burglary charge, somebody that burglarized a business after it's closed in the evening, that's considered a violent crime. And that's not eligible for the expanded certain sentence credit system. While that person burglarized is that business, they also steal $1,000 worth of property. So that person will also be charged with grand larceny, which is a property crime, which is not violent. So the person, and let's say they get 10 years for the burglary, two years for the robbery, the person is going to serve that 85% of that burglary charge, they're not going to be eligible for the Earned Sentence Credit Expansion on that. However, on the larceny charge, the grand larceny charge, they would be eligible for an the expanded program, which will allow them to earn about two, maybe three, more months off of the back end of that non violent crime, the sentence for that nonviolent crime. And what it really does is incentivize people to participate in rehabilitative programming, vocational training, and to, to behave and act in an appropriate manner while they're incarcerated by doing what's asked of them and not jeopardize anybody's safety, whether it's staff, or other people that are incarcerated, as well.

Michael Pope

So the Governor's budget amendment was successful, it passed the House, it passed the Senate. And so explain what this looks like for these thousands of inmates who had the rug pulled out from them. They thought they were going to be released early, they're not going to be released early. What does this actually look like in the lives of these inmates and their family?

Shawn Weneta

For starters, for the people that are that are currently incarcerated, and have been, two years ago, the General Assembly, and the Executive, the government of the Commonwealth of Virginia, made a commitment to people that are incarcerated, and their families, who are waiting on them to come home, that if they did what was asked of them, they would have the opportunity to earn a release, that would have been a couple months, maybe a year sooner, because they had done everything that was asked of them. And what that means for them now, is that that that commitment, that promise, that the government made to them, is broken, and it means that they are no longer going to be returning home in time, and, and it means for- I'll tell a story of one gentleman right now, I was- that I'm working on, his name is Armand, and his mother was just recently put on a feeding tube, and is dying of cancer. He was supposed to go home today on July 6th. However, now he won't be going home for several months, and his mother has- will probably no longer be alive come this weekend. If he had gone home today, he would be able to spend his mother's, you know, his first couple days out, would be the last couple of days of his mother's life, and she'd be able to see him out of prison. And he's been in prison for more than two decades. That's just one one story of, of many that that are coming out of this Governor's amendment.

Thomas Bowman

Thanks for illustrating the human impact that this policy change, and this rug pull, have on real people. So let's talk about some other very real people. And let's talk about what happened at the budget special session, because it seems like you had help from House Republicans, but opposition from some Senate Democrats? What happened with that?

Shawn Weneta

The way the budget works, because it's a House bill, it goes through the House first, and anything that, sort of, doesn't get passed by the House, any of the- when the Governor's amendments come down, when it doesn't get- if those Governor's amendments don't get passed by the House, then they don't even get sent over to the Senate, they don't even get to consider them. A good example of that is the Governor's attempt, through the budget, to limit, or outlaw, picketing near a judge's home. House Republicans thought that was a bad idea, and they just killed it, and the Senate didn't even get a chance to consider it. So we were hoping for a similar outcome on the Earned Sentence Credit repeal from the Governor. And yeah, I had spent a lot of time talking to House Republicans. And when the vote on this amendment came up, there was three House Republicans that are, for a few different reasons, some of them didn't like the the process of legislating through the budget. That was one of the reasons that that one of them took a walk. There was other Republican members that didn't like that they were yanking the carpet out from people, from underneath people, and people believed in this policy. And there was one of them had several constituents who had loved ones that were impacted- would have been impacted by- or that are now impacted by this amendment. And those three Republicans chose not to vote in favor of this amendment.

Thomas Bowman

So this amendment would actually have failed in the House, if all the House Dems were present that day. But three of them were MIA, Paul Krizek, Shelly Simonds, and Luke Torian. Shawn, what happened there?

Shawn Weneta

It's hard to say. I certainly don't keep the calendars of any members of the General Assembly. I do know that Delegate Simonds was on a, I think a long planned family vacation on that day. I don't know exactly why we were unable to rally Delegate Krizek, or Delegate Torian to Richmond for that vote. You know, we're certainly disappointed that all members weren't there and able to vote, because had they been there, and had they voted along with their Caucus, which we expect that they would have, this amendment would would not have moved forward, and the carpet would not have been yanked out from under 1000 families over the course of the next, you know, 60 days. And as you mentioned earlier, Michael, I believe about 8000 people that are, currently, incarcerated in the Department of Corrections, are impacted by this.

Michael Pope

So despite your best efforts in the House, this budget amendment passed the House, even though you had three Republicans fail to support this budget amendment, it still got through the House, and went over to the Senate, where things were a bit more precarious. Now, you had three Senate Democrats who ended up voting in favor of the Governor's amendment, Lynwood Lewis, Monty Mason, and John Bell. Shawn, what kind of response did you get from those senators when you asked them about this amendment?

Shawn Weneta

Well, actually, no response, unfortunately. We had advocates in the community, in the criminal justice reform community, had gotten word several weeks earlier that they were delegate or that Senator Bell, Senator Lewis, and Senator Mason were willing to vote in favor of this amendment. And several people reached out to them, and my understanding from from everybody that reached out, was that they were unable to get a response, specific to this amendment. And during during the session, during the reconvene session, none of the three of them spoke, or spoke about their decision, or why they were going to take an up or down vote on the amendment, which was also disappointing.

Thomas Bowman

Some of the senators who did speak said that the law went further than they intended. Shawn, is this a credible argument?

Shawn Weneta

Not at all. In fact, in both chambers, Delegate Bell, who as I mentioned earlier, Delegate Bell who introduced the amendment on the floor, because he was when they advocated with the Governor's Office to introduce it, along with Attorney General Miyares, Delegate Bell... helped craft this language, you know that was in place. Same thing when it went through the Senate, Senator Obenshain introduced the amendment, and said that the language went too far. However, it went through the committees that he sits on, and he had every opportunity to address the language. A majority of the people that serve on these committees are attorneys, and most of them do criminal work. And they had the opportunity to address the language of this bill multiple times. And they helped write it, they chose not to address it, they didn't address, they didn't address it last year. They didn't even consider it last year. So the argument that it didn't do what they intended, or that this was something that was sloppily done by Democrats, is simply a fallacy. It's it, it doesn't hold water, it's not credible. This bill went through all 140 members, or I guess it might have been...no 139, because unfortunately, Senator Chafin had tragically passed away. But this went through every member of the General Assembly had the opportunity to raise this concern. Every member of the Judiciary and Courts of Justice Committee knew exactly what this bill did. As Senator Deeds pointed out, everybody has a responsibility to read these bills, and everyone knew exactly what was going to happen. And they chose to vote for it anyway.

Thomas Bowman

So part of the debate over the details, use some statistics that were questionable. What was wrong with some of the talking points that Republicans, and opponents, were using during, especially, the Senate debate?

Shawn Weneta

Yeah, especially during the Senate debate, there wasn't a whole lot of debate on the House side. Delegate Bell presented some statistics that were that were inaccurate, but but didn't get disputed at all. On the Senate side, the stats that were presented by Senator Obenshain were, at best, misleading, if not outright deceptive. And I don't know if it was because Senator Obenshain was simply given bad information by the Department of Corrections, or if he didn't read the full report that I have, that was given to him, that it was misleading in saying that people with capital murder, were getting out. The report that was provided to him by the Department of Corrections, said that there were four people with capital murder charges that were going to be released. But interestingly, there was an asterisk, two asterisks, next to the capital murder cell on the spreadsheet. And then you had to go down and read the fine, fine print that would tell you that, in fact, nobody convicted of capital murder was going to be touched by this bill. Because people with capital murder were the first exclusion, and the only option for somebody with a capital murder charge, is life without parole. So that was one of the misleading stats, the overwhelming, or a plurality of people that were going to have these sort of mixed offenses that we've spoken about, this, the largest category of those people had robbery charges. And none of them that had these robbery charges, or most of the people that have these robbery charges, the robberies did not involve a threat, or a weapon, or any sort of injury. In addition to that, they were predominantly people of color, and another sort of impact of this bill, and if we want to talk about unintended consequences, another impact of this partial repeal, or this Governor's budget amendment, is that it's going to increase the racial disparities within the Department of Corrections. And that was something that was included in the the racial impact statement that was provided to the General Assembly by JLARC, that was available to them back during the regular session. So a lot of the stats that were put forward of how this was going to let out a whole bunch of people with murders, and a whole bunch of people with sex crimes, was simply inaccurate, it was less than 2% of the people that are getting out as a result of this had a paired, you know, violent crime, or a paired sex crime, or homicide, that was also paired with a nonviolent offense and, and important to point out sort of two things is, first off, this bill wasn't going to commute any sentence, or get somebody out that wasn't already going to get out. All of these people were getting out anyway. This just allowed them to get out a few months, maybe a year or two early, because they had done everything that we asked of them. And they were only getting out a little bit early on the nonviolent crime. Most of them with these, these more heinous crimes, had served decades, 10, 20, 30, even 40 years in prison, they already pulled their time for, for the violent offense. It was just this nonviolent offense that they're getting a little bit of time off for.

Thomas Bowman

Shawn, I want to make sure I heard you correctly. Did you say that that the Department of Corrections supplied those misleading statistics?

Shawn Weneta

That's correct. The Department of Corrections sent a report to members of the General Assembly, that some members of General Assembly did share that with us. And we discovered that the Department of Corrections was, was being, at best, not completely forthcoming. And I would argue, manipulative, in the way that they presented the data to members of the General Assembly in order to sort of stoke some fear, and to stoke tempers, because this was not a- the Department of Corrections did not want this bill to go forward in 2020. They actively supported its repeal earlier this year. And they were able to sort of present some statistics that were misleading to the members of the General Assembly, and people that didn't have time to read these reports.

Thomas Bowman

And of course, there's no redress by the members of the General Assembly, because they don't have the power of oversight like the U.S. Congress does. But we've got to move on, because we're basically out of time. But I want to talk about, briefly, what comes next, Shawn. These thousands of inmates received really upsetting news after that special session. They're not going to be released on the date that they've earned, under that Earned Sentence Credit Law. Instead, they're going to be released at a later date, who knows when? Can anything be done to help these people in prison get out faster?

Shawn Weneta

Well, absolutely. Governor Youngkin has absolute, the absolute constitutional authority to pardon. And so he can take executive action, and he doesn't need the General Assembly, he can go back and find each one of these people who the promises were broken to. And he can use his pardon pen in the same manner that Governor Northam did, and start releasing people on the dates that they were supposed to get out. And he can start doing that today. Short of that, come January, when the General Assembly reconvenes, they can repeal this budget amendment in total. And and granted, that would be six months later than it should be. But the General Assembly can undo this next year. We are certainly hopeful that they do because it is patently unfair to make this promise. The bill was written exactly as it was intended. It was enacted exactly, or it was passed, exactly as it was intended. It was signed as it was intended. And any assertion to the contrary, or or claim by the Governor that I saw him saying that the bill wasn't written right, it was written exactly as it was supposed to be. And members and executives who weren't there two years ago, shouldn't be speculating as to what the intent was of the legislature from two years ago, or the Governor from two years ago, when they could have just asked Don Scott what the intent was. He was one that wrote it. Delegate Scott is still serving in the General Assembly, and so is Senator Boysco. Senator Boysco spoke very passionately about it during the floor debate on the bill, and and so did Senator Deeds. The bill was written and enacted exactly as it was intended. And it should be restored to that as soon as possible. And we'd certainly encourage the Governor to use his power of pardon in the meantime, to begin sending people home to their families who have been waiting on them to come home, who have made plans, who have planned weddings, who are are also dying, unfortunately, and taking a variety of measures to set up for their their loved ones success when they come home.

Thomas Bowman

Alright, well let's leave it here. Shawn Weneta of the ACLU, thanks for giving us so much to unpack, for joining us, and helping us understand what's happening to these people who've had the rug pulled out from under them.

Shawn Weneta

Thanks for having me. It's good to be here.

Michael Pope

Pod Virginia is a production of Jackleg Media. Our Producer is Aaryan Balu, our Social Media Manager is Emily Cottrell, and our Advertising Sales Manager is David O'Connell.

Thomas Bowman

Find us on Facebook or Twitter, subscribe wherever you get your podcasts and hey, write a review on Apple Podcast. It really helps people find the show.

Michael Pope

We'll be back next week with another episode of Pod Virginia.