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Judicial Watch • Cuccinelli Rights Restoration Advisory 2013

Cuccinelli Rights Restoration Advisory 2013

Cuccinelli Rights Restoration Advisory 2013

Page 1: Cuccinelli Rights Restoration Advisory 2013

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Report the Attorney General
Rights Restoration Advisory Committee
Alternatives Constitutional Amendment
May 10, 2013
Kenneth Cuccinelli,
Attorney General
Harvey Bryant
City Virginia Beach Commonwealth Attorney
Lisa Caruso
Dinwiddie County Commonwealth Attorney Anne Gambrill Gentry
Associate University Counsel, George Mason University
Paul Goldman
Former senior advisor Governor Douglas Wilder
Henry Howell, III
The Eminent Domain Litigation Group, PLC
Donald Santarelli
President, Center for Community Corrections
Ashley Taylor, Jr.
Troutman Sanders LLP
Former commissioner, United States Commission Civil Rights
The Constitution Virginia declares that [n]o person who has been convicted felony shall qualified vote unless his civil rights have been restored the Governor other appropriate
authority. The policy choice Virginians through their Constitution deny the right vote
persons convicted certain criminal offenses has been place one form another since the
Constitution 1830.2 Questions law have arisen recent public policy discussions regarding the
manner and extent which the restoration civil rights for persons convicted felonies may
accomplished Virginia. Attorney General Kenneth Cuccinelli, appointed advisory committee consider these legal questions.
The Attorney General Rights Restoration Advisory Committee examined Article II, well the constitutional provision setting forth the Governor clemency powers.3 The committee also
considered alternatives that may available within the existing framework the Constitution
Virginia restore the civil rights individuals who, after having been convicted certain nonviolent
felonies, have completed their sentences and paid all fines and court-ordered restitution, any.4
The committee reached the following conclusions: rights.
The General Assembly cannot establish statute process for the automatic restoration
The Governor cannot institute executive order automatic, self-executing restoration rights for all convicted felons the Commonwealth Virginia.
The Governor, however, may exercise his discretionary clemency power more
expansive manner restore civil rights individualized basis.
The General Assembly through the appropriation act may facilitate permanent function
under the Office the Governor assist the Governor the exercise his discretionary clemency
power that all those who apply can given timely consideration have their civil rights restored.
The Governor the exercise his discretionary clemency power may decide the policy
details the process his Office will use for the restoration civil rights within the existing constitutional
framework.
The Governor possesses the authority consider new approaches the restoration rights that
could include proactive outreach and educational efforts addressed those Virginians who have returned the community after felony convictions but have not yet applied have their civil rights restored. The
details for such new approaches would within the discretion the Governor under his clemency
power, long Governor action remove political disabilities continues made
individualized basis.
VA. CONST. art. II,
VA. CONST. 1830, art. III, (disqualifying from voting any person convicted any infamous offence
See DICK HOWARD, COMMENTARIES THE CONSTITUTION VIRGINIA 344-47 (1974).
VA. CONST. art. The Governor shall have power ... remove political disabilities consequent upon
conviction for offenses committed prior subsequent the adoption this Constitution
This report does not address whether the restoration rights process utilized the Governor should
revised that policy question reserved the Governor the exercise his discretionary clemency power.
The General Assembly cannot establish statute process for the
automatic restoration rights. 1999, official advisory opinion the Attorney General concluded that the General
Assembly not other appropriate authority within the meaning Article II, empowered
restore the voting rights felons Virginia.5 The General Assembly 1969 added the proposed
Constitution later presented the voters for adoption the phrase other appropriate authority
make clear that civil rights may restored for felons other appropriate authority include
President, other governors, pardoning boards, etc. 1974, opinion the Attorney General
construed the phrase include the President, other Governors, and pardoning boards which have such
power. Because the clemency power Virginia vested the Governor, not the General Assembly,
the legislature does not possess independent power restore civil rights persons convicted
felonies other than through the process amend the Virginia Constitution.8
The Governor cannot institute executive order automatic, selfexecuting restoration rights for all convicted felons the Commonwealth
Virginia.
When Governor issues executive order, does based upon the authority inherent the
constitutional duty Governor take care that the laws faithfully executed. The issuance
executive order generally considered appropriate whenever:
(i)
The Code Virginia expressly confers that authority upon the Governor;10
(ii)
There genuine emergency that requires the Governor issue order
abate danger the public regardless the absence explicit authority;11
(iii)
The executive order merely administrative nature, opposed
legislative.12
1999 Op. Va. Att Gen. 48, 49-50. See also 1999 Op. Va. Att Gen. 50, (circuit courts are not other
appropriate authority under Article II, and may not imbued with such authority either legislatively
through executive order issued the Governor.
See PROCEEDINGS AND DEBATES THE SENATE VIRGINIA PERTAINING AMENDMENT THE
CONSTITUTION 104 (Ex. Sess. 1969). See also PROCEEDINGS AND DEBATES THE VIRGINIA HOUSE DELEGATES
PERTAINING AMENDMENT THE CONSTITUTION 159 civil rights may restored for felons other
appropriate authority which, course, could include the President Governor, pardoning boards, and forth
(Ex. Sess. 1969).
1974-75 Op. Va. Att Gen. 197, 198.
See VA. CONST. art. XII, Pursuit constitutional amendment the path that would afford policy makers
the greatest flexibility fashion change how civil rights are restored Virginia.
VA. CONST. art.
See Boyd Commonwealth, 216 Va. 16, 19, 215 S.E.2d 915, 917 (1975) (Governor acted within the limits
authority granted him Emergency Services and Disaster Law 1973 when issued executive order changing
speed limit grounds that fuel shortage was disaster within the meaning the act). See also 1990 Op. Va.
Att Gen. 1983-84 Op. Va. Att Gen. 180, 182; 1977-78 Op. Va. Att Gen. 7-8.
1990 Op. Va. Att Gen.
Altering the public policy the Commonwealth regards the disenfranchisement persons convicted felonies clearly would legislative act, not administrative act.13 While the Constitution
Virginia does confer the Governor the power remove political disabilities consequent upon
conviction for offenses, court likely would find difficult sustain Governor exercise this
clemency power sweeping manner that the Constitution general policy disenfranchisement
felons voided.14
The Governor power remove political disabilities matter left his discretion and, unlike
his other clemency powers, not subject requirement report the General Assembly the
particulars for every exercise the power and the reasons for exercising the same.15 However, [i]t ... established canon constitutional construction that one provision the Constitution
separated from all the others and considered alone, but that all the provisions bearing upon
particular subject are brought into view and interpreted effectuate the great purpose
the instrument. harmonize and give effect both Article II, and Article 12, the
Governor power remove political disabilities more properly read exercisable
individualized basis. After all, Article II, provides that [n]o person who has been convicted
felony shall qualified vote unless his civil rights have been restored the Governor other
appropriate authority.
The Governor, however, may exercise his discretionary clemency power
more expansive manner restore civil rights individualized basis. noted above, the Governor discretionary power remove political disabilities not
constrained any requirement report the particulars for every exercise the power and the
reasons for exercising the same.18 The Constitution accords the Governor considerable latitude how may exercise this power remove political disabilities long makes some form
individualized consideration and individualized grant clemency.
Id.
See Whitehead and Dev. Corp., 204 Va. 144, 150, 129 S.E.2d 691, 695 (1963) [S]ubjects
permanent general character are considered legislative; while those which are temporary operation and
effect are administrative. Acts constituting declaration public purpose policy are generally classified
involving the legislative power
See Jackson Hodges, 176 Va. 89, 93-94, S.E.2d 566, 567 (1940) (Governor had authority increase
the salary the Secretary the Commonwealth executive order violated constitutional provision that
salaries officers the executive department were fixed law and not increased diminished during term office). See also 2006 Op. Va. Att Gen. 36, 38-41 (an executive order that changes public policy protected
employment classes beyond the scope executive authority); 1941-42 Op. Va. Att Gen. (Governor does not
have the power issue and enforce proclamation requiring the observance daylight savings time that
involves the exercise legislative, not executive, function).
VA. CONST. art. 12. See Phillips, 265 Va. 81, 87-88, 574 S.E.2d 270, 273 (2003) the power
remove the felon political disabilities remains vested solely the Governor, who may grant deny any request
without explanation, and there right appeal from the Governor decision
See Pierce Dennis, 205 Va. 478, 482, 138 S.E.2d (1964) (quoting City Portsmouth Weiss, 145 Va.
94, 107, 133 S.E. 781, 785 (1926)).
VA. CONST. art. II, (emphasis added).
See authorities cited supra note 15.
The General Assembly through the appropriation act may facilitate
permanent function under the Office the Governor assist the Governor the
exercise his discretionary clemency power that all those who apply can
given timely consideration have their civil rights restored.
Governor Robert McDonnell instituted practice his administration that complete
applications for the restoration civil rights received his office are acted upon within days. making restoration rights priority, Governor McDonnell eliminated the backlog pending
applications that inherited from his predecessor. April 12, 2013, Governor McDonnell had
removed the political disabilities 4,659 individuals, the highest number any Governor the past
years. The Secretary the Commonwealth currently has two employees assigned clemency matters,
and she indicates that this staffing level appropriate process timely manner the applications
received under the currently structured program.
The number Virginians convicted felonies who apply have their rights restored
relatively small percentage the total number persons with political disabilities reason felony
convictions. Further refinements the Governor restoration rights program reach broader
number persons may necessitate additional resources, and the General Assembly may exercise its
legislative power provide such resources through the appropriation act. Additionally, state personnel
resources might augmented volunteers coordinated through, for example, the Virginia State Bar and
faith-based organizations.
The Governor the exercise his discretionary clemency power may
decide the policy details the process his Office will use for the restoration civil
rights within the existing constitutional framework.
Individuals are more likely take the initiative avail themselves process (i) notice the
process given them,19 (ii) the process designed that easy use, and (iii) there level
confidence that the process will uniform its application regards like situated persons. Whether
revise further the restoration rights process utilized the Office the Governor, and what form that
revised process might take, are policy questions reserved the Governor the exercise his
discretionary clemency power. New approaches the restoration rights within the scope the
Governor authority could include proactive outreach and educational efforts addressed those
Virginians who have returned the community after felony convictions but have not yet applied have
their civil rights restored. The details for such new approaches would within the discretion the
Governor under his clemency power, long Governor action remove political disabilities
continues made individualized basis.
Alternative Approaches Discussed
Since 1982, attempts amend the Virginia Constitution the subject the restoration rights
have proven unsuccessful. The committee considered number alternative approaches the subject
See VA. CODE ANN. 53.1-231.1 (2009) (as recommended the State Crime Commission its 2003 report the Restoration Civil Rights, this section requires the Director the Department Corrections notify
felons completion sentence, period probation parole, suspension sentence the processes available
for the restoration civil rights and voting rights).
that would not require constitutional amendment. The committee discussed one alternative approach
admittedly innovative and untried Virginia which the General Assembly would designate within
the executive branch agency spearhead the rights restoration process behalf the Governor.
This could implemented assigning the duties existing state agency. The agency would led director appointed the Governor, subject confirmation the General Assembly give the
legislative branch additional role the process. Guided policies articulated the Governor, this
agency would what not practical now: lead statewide, proactive outreach and educational effort
encourage individuals apply for restoration their civil rights. Indeed, this type executive agency
approach would help ensure continuity and also make easier coordinate the energies the many
faith-based and other community groups with proven interest assisting deserving individuals who
wish become fully contributing members society. This type executive approach should able
reach many who may feel they are not position get Governor attention. After processing
applications received, this agency could formulate recommendations for the Governor who would make
the decision whether remove political disabilities for each individual applicant. balance, the
committee found this alternative approach intriguing idea with great deal practical appeal.
The Committee also discussed second alternative approach that would augment the staff the
Secretary the Commonwealth handle the envisioned outreach and educational effort. The benefit
keeping the restoration rights process with the Secretary the Commonwealth that this office also
currently provides staffing for the Governor other clemency matters involving grants reprieves and
pardons, and remissions fines and penalties.20
See VA. CODE ANN. 2.2-402(A) (Supp. 2012) (among the statutory duties the Secretary the
Commonwealth render the Governor, the dispatch executive business, such services requires