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Around the same time that Gov. Ralph Northam dedicated the month of May to conversations about criminal justice reform, he vetoed a bill that would have required minimum sentencing for people charged with domestic violence crimes for the second time.
Dels. Kathleen Murphy, D-Fairfax, and Todd Gilbert, R-Shenandoah, co-sponsored a bill that would have required 60 days of jail time for someone who is convicted of an act of domestic violence within 10 years of being convicted of assault and battery against a family member.
Existing law says a person who commits assault and battery on a family member three times in 20 years would be guilty of the lowest-level felony charge in the state, punishable by up to one to five years in jail and a $2,500 fine.
Northam vetoed Murphy and Gilbert’s bill, saying legislation that creates minimum mandatory sentencing targets people of color. But data from the state shows in the case of domestic violence, punishment is handed down almost evenly among races when it’s handed down at all.
“We rely on our judges and juries to make sound sentencing decisions based on the circumstances of each individual case,” Northam wrote in a veto statement.
“In making these decisions, judges and juries consider a number of factors before determining a sentence, and their sentence decisions are the result of intense deliberation. Imposing mandatory minimum sentences eliminates this discretion and ties the hands of the individuals we have entrusted to make these important decisions.”
Republicans lambasted his decision shooting down the bipartisan bill, saying Northam was trying to make amends for a racist photo found on his medical school yearbook at the expense of abuse victims.
“Data do not indicate that mandatory minimum sentences keep our communities safer. Instead, mandatory minimums are disproportionately harming people and communities of color,” Northam wrote in a Washington Post editorial the same day he announced the veto.
The veto kicked off his Second Chances month, which will “facilitate conversations and participate in events focused on criminal justice reform and reentry programming,” according to a press release.
“My first reaction was that he was protecting himself and his legacy at the expense of protecting victims of chronic domestic violence and that was infuriating,” said Gilbert, House majority leader.
“My other thought when I saw the veto was that I think the governor should be aware that communities of color are deeply affected by chronic domestic abuse … there are lots of African American women who need this help and need this relief and he should have thought more about them than protecting his legacy.”
(According to the most recent Department of Health report on family and intimate partner homicide, black Virginians are killed more often than other groups at the hands of a family member, caregiver or partner).
Gilbert said he and Murphy — who didn’t respond to requests for comment on the legislation — have worked on getting more strict punishment on the books for domestic violence charges for years. The Washington Post reported that Murphy told other lawmakers she was “heartbroken” over the governor’s veto.
“The issue with mandatory minimums is whether you’re taking away a judge’s discretion. And certainly that is true, but it may be that mandatory minimums grew up around far too lenient judges just slapping people on the wrist for repeat offenses and not really understanding what those repeat offenses lead to,” said Gilbert, who was a prosecutor for 15 years and worked on at least one case where repeated domestic violence led to a murder.
He’s waiting to see if he’ll introduce similar legislation next session.
“The issue is whether the governor is going to have satisfied his desire to use these bills to try and improve his image in some way with a certain constituency,” Gilbert said.
“At this point, we have no idea whether his veto pen will still be as active next year in trying to rebuild his legacy or not. I certainly don’t want to waste anybody’s time if he’s still going to be committed to rebuilding his image and protecting himself.”
‘The scary time for victims’
Domestic violence is one issue that bridges racial, socioeconomic and other divides, according to the attorney general’s annual report on domestic violence.
The attorney general’s office keeps track of domestic violence numbers in the state. It considers elder abuse, child abuse, stalking, dating violence, sexual abuse and trafficking in women and children as domestic violence. Several different charges fall into the category, including homicide and assault and battery.
The most recent report, presented to lawmakers in January of this year, found there were 158 family or intimate partner homicides in 2016, the most recent year of data available. It was a 27 percent increase from the year before and made up 33 percent of all homicides in Virginia in 2016.
In 2017, law enforcement made 23,634 arrests for assault and battery against a family or household member. A “significant number of individuals were charged as repeat offenders,” the report stated.
Twenty percent of those arrests resulted in convictions. There were 1,689 felonies charged for third offenses of assault and battery against a family member, which is supposed to result in automatic jail time under current law if committed within 20 years.
Of those 1,689 charges, there were 1,051 convictions.
The Virginia Sentencing Commission did a special report in relation to Murphy and Gilbert’s bill, since it would have potentially affected jail capacity around the state.
In fiscal year 2017, 1,513 people were sentenced for domestic assault and battery for a second time. In 52 percent of those cases, offenders got no jail time. In those cases, offenders can be fined or placed on probation instead.
The analysis also looked at race. Among white defendants, 52 percent didn’t get any jail time, 21 percent got less than 60 days and 26 percent got 60 days or more.
Fifty-three percent of black defendants didn’t get any jail time, according to the analysis. Nineteen percent got fewer than 60 days and 26 percent got 60 days or more.
That tracks with what Linda Ellis-Williams, director of programs for the YWCA of Central Virginia in Lynchburg, has seen in her 27-year career working with victims of domestic violence.
Sentencing varies widely depending on the judge, but she almost always sees jail time partially or fully suspended for perpetrators of domestic violence.
“That’s the scary time for victims. They’re so scared already to call the police or do anything because of the threats made toward them,” Ellis-Williams said. “When he gets out, is he going to be more upset because she testified and he got time in jail or something like that? So the consequences for her are real.”
Conviction, punishment often requires victims’ help
Professionals from around the state who work with victims of domestic violence are unsure of the best way to deal with perpetrators of domestic violence.
When jail sentences do happen in domestic abuse cases, the perpetrators’ time behind bars gives victims time to leave the situation, but jail isn’t always a cure-all, according to organizations around the state that work with victims of domestic violence.
“I’m not one that says throw them in jail … because a part of me doesn’t think that really helps, but at this point in time, that’s all we really have,” Ellis-Williams said. “We know repeat offenders sometimes kill. At least the victim stays safe if the perpetrator stays in jail. I’m not sure if jail is the answer, but there has to be some sort of consequence.”
The Virginia Sexual and Domestic Violence Action Alliance, which is cited in the Attorney General’s report on domestic violence, has opposed mandatory minimums for domestic violence charges since the mid-1990s, said Policy Director Jonathan Yglesias.
“While we applaud legislators’ instincts to take crimes of domestic violence seriously and to seek victim safety, we do not believe that mandatory minimums are a real solution that protects victims of domestic violence,” the group wrote in a blog post after Northam’s veto.
“In fact, mandatory minimums are a costly and simplistic tool that serve to remove judicial discretion and disproportionately impact historically marginalized communities while providing little real safety for victims or true accountability for offenders of domestic violence.”
The group worries victims of domestic violence can be jailed as offenders if they retaliate against their abusers, Yglesias said. Plus, jail often isn’t a rehabilitative experience, he said. The group wrote an editorial in the Richmond Times-Dispatch detailing other options for offenders.
Oftentimes, abusers are violent because of another underlying problem, like substance abuse, mental illness or being a victim of past abuse, said Kristen Pine, chief programs officer at the YWCA of South Hampton Roads.
For people like that, jail might be the best option.
“Some of the local jails do have effective, evidence-based treatments around cognitive behavioral therapy, so for some abusers … jail time may be great because they get some of that programming but not all jails have that,” she said.
For people being charged with domestic violence offenses the first time, judges will suspend jail time if the defendant agrees to go through a Batterer Intervention Program run by state-approved groups with licensed therapists and counselors. Ellis-Williams sits on the board that helps run the program and considers them one of the state’s best options for convicted abusers.
Gilbert thinks jail for second-time offenders is more than fair. At that point, he said, offenders have had time to seek counseling, therapy or other help they need in part through those court-ordered intervention programs.
“For especially women who find themselves in a cycle of abuse … having that period of time of 60 days to perhaps find help or seek intervention or just be free from your abuser and their influence and oppression is an opportunity for people to actually break that cycle,” he said.
“I don’t think 60 days in jail for what is effectively your third time in court for the same thing is onerous in any sense, in fact, it’s probably still quite generous.”
If you or someone you know is experiencing domestic violence, contact the Virginia Family Violence and Sexual Assault Hotline at 1-800-838-8238 for confidential help and referral information.
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