A Summary of the 2008 General Assembly Session
The legacy of the 2008 General Assembly session may come from the bills that died in committee rather than those enacted.
There are a myriad of reasons why legislation dies in session. A bill may fail because a majority does not support its intended policy changes due to fear of unintended consequences, confusion over the subject matter, its fiscal impact, governmental branch or state agency conflicts, or the bill being seen as unnecessary. This article focuses on the “2008 Dead Bill Society” because those bills are instructive on the legislative process and are far more interesting than those that passed.
Some bills die because the issues involved are polarizing, and a majority cannot agree on a policy choice. HB 1254 is one such example. Although the bill did not die, it was amended to become a shell of its former self. As introduced, HB 1254 would have, for the first time, mandated all DJJ employees to release, to law enforcement and the local gang task force, information relating to criminal street gang involvement or the gang-related activity of others. The House amended the bill to also require the juvenile’s identifying information to accompany any such release. In the Senate, concern was raised that the House version was doing something never previously required of juvenile information and would have a chilling effect upon DJJ employees’ relationships and communications with juveniles under supervision (because DJJ staff, including therapists in juvenile correctional centers, would have been required to disclose gang-related information obtained through any communications, including counseling or other treatment services). Members of the House supported and those of the Senate strongly opposed the mandated reporter part of the bill, and each chamber refused the amendments offered by the other. Ultimately, in conference committee, all amendments relating to the release of juvenile gang information were removed from the bill.
Another bill that would have made a significant departure in policy was SB 372. SB 372 would have required registration as a sex offender for a juvenile 12 years of age or older and adjudicated delinquent in juvenile court for an offense for which registration would be required. By far, SB 372 would have been the most significant policy shift of the 2008 session. This bill was continued to the 2009 session by the Senate Courts of Justice Committee.
Some bills fail to make it out of committee not because of their intent but for fear of unintended consequences. HB 750 & SB 394 attempted to make the juvenile court the exclusive court of original jurisdiction in termination of parental rights proceedings (TPR), to remove the jurisdiction of the circuit court to hear the de novo appeal, to provide that the appeal of a TPR case would go directly to the Virginia Court of Appeals, and to make the juvenile court a court of record for termination cases. The legislation stemmed from recommendations from First Lady Holton’s “For Keeps” initiative and was supported by adoption advocates. However, concern was expressed that making the juvenile court a court of record for TPR hearings would open the door for all juvenile court proceedings to be of record. The bill was not adamantly opposed, but there were concerns about its actual effects. The concept was ultimately too complex during this year’s fast-paced session and the bills were carried over until the 2009 session.
HB 1568 also created concerns, not with the policy implications, but with unintended consequences. HB 1568 was introduced at the request of a circuit court judge with the intent to “give the juvenile a fair hearing” and would have changed the circuit court appeal of a juvenile transfer decision from a “hearing to take further evidence” to a “de novo hearing.” Thus, the circuit court would review the case as if the transfer hearing in the juvenile court had never occurred. Under current law, the circuit court only considers whether the juvenile court substantially complied with the law. Again, while there did not appear to be significant opposition to the bill, there was great uncertainty concerning unintended consequences of such a major policy shift without more careful deliberation or study. At the request of the patron, HB 1568 was passed by indefinitely by Senate Courts of Justice.
Sometimes legislation is carried over not necessarily because of opposition, but confusion. HB 1263 would have amended the truancy statutes to change the timeframes for required actions by schools, the court services units, and the juvenile courts. The bill would have required the filing of a petition upon the student’s fifth absence following the first “three consecutive absences,” instead of after seven unexcused absences, as is currently required. It also allowed a petition to be filed alleging the student is either a child in need of services or a child in need of supervision (current law only allows for a petition alleging a child in need of supervision). This bill confused committee members as to the actual impact of changing the number of absences and types of petitions and, at the request of the patron, was carried over.
Some bills die not because of the policy implications but the fiscal impact. Expanding the list of predicate crimes under the definition of criminal street gang has been a popular activity during the previous three General Assembly sessions. However, this session three bills that would have expanded the list of such crimes failed to report out of House Appropriations. HB 590 would have added the larceny of a motor vehicle, HB 1182 would have added all grand larceny crimes, and HB 496 would have added shooting at certain vehicles and within an occupied dwelling to the list. The policy implications of the bills were approved by House Courts of Justice, and the bills were sent to the House Appropriations Committee due to the potential fiscal impact. The Sentencing Commission estimated increased incarceration costs of HB 590 at $26,778, HB 1182 at $303,013, and HB 496 at $12,829. Given the current fiscal state of the Commonwealth, HB 590, HB 1182, and HB 496 failed to report out of House Appropriations.
Any legislation that poses a real or perceived workload battle between two branches of government or state agencies will have problems as the General Assembly tends to pass on such conflicts. Three bills this session exemplified this tendency. Unfortunately, the bills were intended to remove workload headaches for probation and parole officers. HB 591 would have removed the requirements for probation officers to advise juveniles of their right to counsel and to determine a person’s financial qualification for a court-appointed counsel. Concerns expressed by staff from the Supreme Court about the workload impact upon the Clerk’s Office doomed the bill in the House Courts of Justice, and it was stricken from the docket. HB 1252 would have removed any requirement for court services units to conduct custody investigations (as previously attempted in the 2001 session). As in 2001, the Department of Social Services raised concerns about the workload impact of the bill (despite the fact that CSUs conducted only 84 custody investigations in 2007). In addition to the agency conflict, the Supreme Court testified that some judges prefer the CSUs to conduct custody investigations, which ultimately doomed the bill. It was carried over to the 2009 session. The third bill, HB 1255 attempted to provide for the transfer of jurisdiction of juvenile parole violations to where the juvenile lives without a court order. The bill was intended to allow parole officers to file violation of parole petitions in the jurisdiction where the juvenile resides when a juvenile moved from where he was originally committed, upon release from a juvenile correctional center. Concerns were raised with the language in HB 1255 on the grounds that some judges may want to retain jurisdiction over cases and would not want the appropriate venue changed absent a court order. With little discussion thereafter, HB 1255 was left in House Courts.
If the General Assembly did not like the bill before, it’s very probable they will not like it again. Two bills that have died in previous sessions were killed again this year. HB 1519 would have lowered the age for placement in post-dispositional detention from 14 to 11. Similar legislation died in previous sessions due to intense opposition from local detention facilities. This year’s version allowed the detention facility to determine whether or not to lower the age rather than mandate it. This discretion was intended to alleviate some of the fiscal and programmatic concerns raised by detention home superintendents. However, the bill was never docketed in House Courts of Justice and died due to lack of committee action. HB 606 would have required law enforcement to record all custodial interrogations of juveniles suspected of committing a violent juvenile felony when the interrogation takes place “in a place of detention.” This proposal continued to have a very cool reception, and the bill was left in House Courts of Justice.
Sometimes legislation may die because the General Assembly believes the existing law adequately addresses the issue. HB 321 & HB 893 attempted to raise the penalty for the assault on a juvenile correctional officer or staff in a secure juvenile detention facility to a Class 6 felony. The problem was that current law already makes it a Class 5 felony for a person to knowingly and willfully inflict bodily injury on staff working in a juvenile correctional or detention facility.
Sometimes legislation may get carried over because the time available is insufficient to fix the bill. HB 587 was intended to allow a juvenile court to have juveniles paying restitution without being on probation or parole. As introduced, the bill had a very narrow scope because it amended a section in the criminal procedure code (Title 19.2) and, thus, applied only to those juvenile cases transferred to circuit court. HB 587 was continued until the 2009 session.
Sometimes legislation dies because the intent of the legislation is too much to accomplish. This session SB 732 would have required law enforcement to make reports to school authorities on all incidents involving students and Class 1 misdemeanors. Under current law, law enforcement makes reports to school officials only when it is a felony offense and for certain gun and drug offenses occurring on school property. SB 372 would have expanded the reporting requirements to include all Class 1 misdemeanor offenses, including offenses such as shoplifting and making prank phone calls, whether or not the offense occurred on school property. The Virginia Association of Chiefs of Police opposed the legislation as nearly impossible to perform and due to concerns about the workload impact on local law-enforcement agencies. Ultimately, SB 732 was passed by indefinitely by the Senate Committee on Education and Health.
Finally, some issues just do not fare well in certain sessions. This session, sex and gangs did not. Two bills with the intent of making it a crime to engage in consensual sex (targeting “sex-in” practices) as part of a gang initiation failed to make it out of the Committee for House Courts of Justice (HB 589 & HB 969). Also, Senate Joint Resolution 45 sought to study the juvenile transfer process and to determine whether the list of crimes that are subject to automatic transfer should be revised as it relates to the prevention and prosecution of gang-related juvenile crime. This bill was stricken at the request of the patron.
(Mr. Phipps is a long time VJJA member and the Legislation & Regulatory Manager with the Virginia Department of Juvenile Justice).
