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AG announces legal framework to allow streamlining of civil rights restoration process for nonviolent felons
RICHMOND (May 28, 2013) - Today Attorney General Ken Cuccinelli released the report of his bipartisan Rights Restoration Advisory Committee that studied legal alternatives to a constitutional amendment to streamline the restoration of rights process for certain nonviolent felons. Restoration of civil rights is a way to bring those who have served their sentences and paid all fines and restitution back into fuller participation in society, primarily in the area of voting rights.
1. Link to Restoration of Rights Report
2. Remarks of Attorney General Ken Cuccinelli at the news conference
3. Additional information
4. Members of the Attorney General's Rights Restoration Advisory Committee
Remarks of Attorney General Ken Cuccinelli at the news conference
For years, I have expressed concern about the ratcheting up of several low-level offenses from misdemeanors to felonies - "felony creep." Many people in our communities have committed certain low-level, nonviolent offenses in the past; completed their sentences; paid all fines, court costs, and restitution; and have gone on to live law-abiding lives. We need a simpler way for those individuals who want to return to their place in society to be given a second chance and to regain their civil rights that were lost through a felony conviction.
We have to be tough on crime, but part of a successful criminal justice system includes rehabilitation and reentry into society. This benefits society as a whole by potentially reducing recidivism, as about 95 percent of those who go to prison come back out. Restoration of civil rights restores the right to vote, serve on juries, run for public office, and serve as a notary public. It does not restore the right to possess a firearm and it does not expunge charges or convictions from a criminal record.
Currently, the only way a nonviolent felon can regain his or her civil rights is by asking the governor in writing to restore those rights, and a governor generally doesn't act until he has received an application. The process can be slow and difficult, depending on the priority a governor's office places on how quickly to turn around a decision and the sheer number of applications.
Gov. McDonnell streamlined the current process in 2010 by pledging to make restoration decisions within 60 days of application and by reducing the wait to submit an application from three to two years. I voiced my support back then and endorsed making it easier for those who had convicted certain nonviolent felonies and turned their lives around to regain their place in society. However, I was concerned that future administrations might not place the same priority on such efforts. Additionally, we had an unsuccessful attempt in the General Assembly this year to move forward a constitutional amendment to allow for a more consistent process.
So in March, I put together a bipartisan advisory committee to examine what could be done within the existing constitutional framework to improve the restoration of rights process. The committee wasn't only bipartisan; I also chose people who didn't necessarily agree with me on the issue.
We looked at what could be done outside of amending the constitution, because attempts to amend the constitution have been unsuccessful since 1982. Those amendments focused on allowing an automatic process - or what lawyers would call self-executing - where those who served their sentences and met certain objective criteria would get their rights automatically restored instead of submitting to an individualized restoration by the governor.
The committee's report examined what could and what couldn't be done to streamline the rights restoration process. The committee reached the following conclusions:
- It confirmed that the General Assembly can't merely pass a law to create an automatic process for the restoration of rights. And again, when we say automatic, we mean a process that doesn't include the governor. The Virginia Constitution would have to be amended to allow for an automatic process.
- Similarly, the governor can't issue an executive order to restore rights automatically and eliminate restoration on an individualized basis.
- However, the constitution does allow the governor significant latitude in designing the process as long as he makes some form of individualized consideration and individualized grant of clemency.
- And unlike his other clemency powers, the governor isn't required by the constitution to report to the General Assembly on the particulars of every exercise of his power to restore civil rights. He also can choose to exercise his power in a more proactive manner and isn't required to wait for an ex-offender to apply for restoration.
- In addition, the General Assembly could assist the process by appropriating funds to support a more permanent function in the executive branch to assist the governor in reviewing applications.
After looking at the law, the committee discussed several alternative approaches, but didn't endorse any one in particular. One approach discussed would designate an existing agency within the executive branch to spearhead a more proactive rights restoration process on behalf of the governor. The agency could:
- ensure continuity through administrations;
- lead a statewide outreach effort to those eligible for rights restoration but who haven't yet applied;
- coordinate faith-based and other community groups that assist people in the restoration process; and finally,
- it could process applications and formulate recommendations for the governor, still reserving for him the decision whether to restore the rights of each applicant on an individualized basis.
Ultimately, it's up to the governor to decide the policy he wants to implement, as long as that policy provides for restoration by the governor himself on an individualized basis.
In conclusion and speaking only for myself, I believe we need a simpler way for individuals who want to return to their place in society to be given a second chance and to regain their civil rights that were lost through a felony conviction.
Protecting public safety is a primary responsibility of government. That includes ensuring justice for victims of crimes and due process for those who commit them. Anyone convicted of a crime must serve his time and pay his debt to society. Advocating for the restoration of rights for some non-violent offenders isn't a softening of this commitment. Instead, a successful criminal justice system helps to fulfill government's public safety responsibility by including a process for rehabilitation and reentry into society, which can reduce recidivism and ultimately benefits us all.
ADDITIONAL INFORMATION (attribute to Brian Gottstein)
The governor and his staff have reviewed this report, and tomorrow the governor will be making some specific policy announcements.
The attorney general was initially against restoration of rights when he was in the Virginia Senate. He gradually changed his position, in part, due to felony creep, and also because he felt rights restoration was good for society overall because it could potentially reduce recidivism.
Relative to felony creep, the attorney general supported legislation in the Senate to raise the dollar amount that constituted felony theft. The amount had been set years before and was never adjusted. There were two bills - one from Sen. Chap Petersen and the other from Sen. Scott Surovell. They were both unsuccessful. The attorney general feels that restoration of rights for certain low-level nonviolent felonies is one way to address some overly harsh felony laws.
Members of the Attorney General's Rights Restoration Advisory Committee
Members of the committee represent a broad spectrum of perspectives on the issue and some do not necessarily share the attorney general's view on the subject.
Attorney General Ken Cuccinelli
Harvey L. Bryant is serving in his fourth term as the City of Virginia Beach commonwealth's attorney. He has previously served as a prosecutor in the City of Norfolk commonwealth's attorney's office and as an assistant U.S. attorney in the Eastern District of Virginia.
Lisa Caruso is serving in her second term as Dinwiddie County commonwealth's attorney. Prior to being elected in 2007, she served as the deputy commonwealth's attorney in the City of Colonial Heights. She also has worked as a public defender in both Louisville, KY, and Richmond.
K. Anne Gambrill Gentry is associate university counsel at George Mason University and an assistant attorney general in the Health, Education and Social Services Division of the Office of the Attorney General of Virginia.
Paul Goldman is a former senior advisor to governors L. Douglas Wilder and Mark R. Warner. A partner in the firm Morrissey & Goldman LLC., he is a former chairman of the Democratic Party of Virginia.
Henry E. Howell, III is a property rights attorney in Norfolk at The Eminent Domain Litigation Group, PLC. He also lectures on the subject of eminent domain law.
Donald E. Santarelli is the president of the Center for Community Corrections, a nonprofit research organization with a mission to improve public safety by addressing problems of ex-offender reentry and recidivism. He is a partner in the Washington, D.C., office of the law firm Dinsmore & Shohl, LLP.
Ashley L. Taylor, Jr. is a former commissioner on the U.S. Commission on Civil Rights. He is a partner in the Richmond office of the law firm Troutman Sanders LLP, where he is practice group leader for regulatory compliance and government litigation.