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November 9, 2021

"Elections have consequences": Virginia criminal justice edition

I now have seen a couple of noteworthy articles related to criminal justice issues coming from Virginia in the wake of GOP candidates prevailing in last week's election.  Here are headlines and excerpts:

"What Youngkin’s parole board promise signals for Virginia’s criminal justice system":

Governor-elect Glenn Youngkin promises to fire and replace the board after an investigation last year found its members weren’t following the board’s own rules. Attorney general-elect Jason Miyares also says his office will re-investigate what happened.  Come January of next year, Virginia will have a republican governor for the first time since 2014. The new leadership is expected to bring new policies — and a new, Republican-appointed parole board.

While claiming victory last week in northern Virginia, Youngkin echoed what was one of his key campaign promises.  “We will replace the entire parole board on day one,” he said....  The promise comes during the ongoing parole board scandal.  Last year, the state’s watchdog agency found Virginia’s parole board violated the law, specifically failing to notify local prosecutors and victims’ families of some releases.  “The most that we can kind of conclude from that whole saga was that the board was not following its own rules and needed to do a better job of doing that,” said 8News Political Analyst Rich Meagher, on Monday....

Meagher said with a new, Youngkin-appointed board, we should expect changes.  “The parole board is considered more of a politicized board and it represents the interest of the party and the party’s ideology,” he said. All of the board’s five current members were appointed by Democratic governors Terry McAuliffe and Ralph Northam between 2014 and 2020.

The state’s new self-described “top cop” Attorney General-elect Jason Miyares doesn’t have any direct control over the board or its decisions. However, Miyares said he’s expecting Youngkin’s appointees to more heavily consider victim input when considering paroles. “I think that’s a critical component,” Miyares said last week.

This is perhaps bad news for some convicts seeking a second chance and good news for victims’ families.  “Youngkin very clearly wants to take a very tough law and order approach so we will definitely see fewer of these parole releases almost guaranteed over the next few years,” Meagher said.

Since parole was abolished in 1995, the parole board only considers eligible people convicted before then. Meagher said what will likely impact even more Virginians is Youngkin and Miyares’ approach to criminal justice. “It signals that there is a change coming,” Meagher said. “I think the democrats have been trying to push for more rehabilitation, less of a focus on incarceration in previous years, and that’s most likely going to change with Youngkin,” Meagher said.

"Virginia AG-elect Miyares seeks legal way to override 'social justice' DAs and 'do their job for them'"

Virginia Attorney General-elect Jason Miyares said that he and Governor-elect Glenn Youngkin will pursue legislation to enable the state's attorney general to circumvent "social justice" commonwealth's attorneys who refuse to vigorously prosecute crimes.

At a news conference on Thursday, Miyares laid out "one of our major legislative initiatives" which Youngkin "has already indicated that he would sign… into law."

Under current law, the AG's office can prosecute a case on behalf of a commonwealth's attorney — Virginia's version of a district attorney (DA) — so long as the DA requests it.

The new bill "would essentially say, if the chief law enforcement officer in a jurisdiction — either the chief of police or the sheriff — makes a request because a commonwealth's attorney is not doing their job, then I'm going to do their job for them," Miyares said.  "I'm thinking specifically, some of the so-called ‘social justice’ commonwealth's attorneys that have been elected particularly in Northern Virginia. We're obviously aware of some pretty horrific cases" where these DAs have not pursued justice.

November 9, 2021 at 12:36 PM | Permalink


Can't wait for Prof. B. to do a trolling contrarian hot take on how the above actually means Rs will be the superior ones on criminal justice.

Posted by: kotodama | Nov 9, 2021 2:04:45 PM

I do not judge based on Rs and Ds but on whether political rhetoric and policy reality match up in service to advancing needed reforms in the criminal justice system. I always hopeful that folks in both parties will do their part to advance needed reforms, and I am usually disappointed by both the political rhetoric and the policy reality. And I try to leave the trolling contrarian hot takes to the comments.

Posted by: Doug B. | Nov 9, 2021 3:21:30 PM

You sure don't waste a moment on the bothsides. It's impressive really.

Sure, sometimes Ds don't always accomplish every last thing on improving criminal justice (or "justice"), but, as I've pointed out as nauseum, (1) they still do accomplish many positive things, (2) oftentimes, the blame for not getting things done lies with obstructionist Rs or obstructionist DINOs, e.g., Manchin, and (3) if you have wildly unrealistic and naïve expectations, you'll dwell in a permanent state of disappointment. If nothing else, Ds clearly have good intentions on this issue.

Where in the above—i.e., from Youngkin and his flunkies—do you see any sign of wanting to pursue beneficial policies, or even just good intentions? All I see is a plan to crack down on parole and make it more stingy, while bringing more prosecutions on what I presume will be BS nonsense that falls disproportionately on minorities and/or the indigent and consequently pumping more people into jail. I trust you'd consider those bad policies and harmful intentions, unless I really missed something.

So yes, I suppose that Ds and Rs could be the same in that each could desire and advocate certain policies, but then only manage to implement some fraction of them. Except that for Ds, in the 70% case, or even 30%, you still get some improvement. Whereas for Rs, success in just the smallest amount, say 10%, means things actually got *worse*. But I take it you'd see no difference in the two scenarios? In fact, you might criticize Ds if they accomplished only 60% of their goals, while Rs accomplished 80%, because we all know 80 is bigger than 60? Never mind that what Rs propose to do is, you know, bad? In other words, the only way things could avoid getting worse is if Rs fail completely, and so we should actually be rooting for that outcome.

Posted by: kotodama | Nov 9, 2021 4:40:58 PM

You are right, kotodama, that I seek to look at both sides of issues and judge actions accordingly rather than use labels like R and D (or RINO and DINO) to do my thinking for me. Are you criticizing having an open-mind and urging me to be a knee-jerk partisan?

As for "good intentions," would you consider an interest in reducing crime and serving the interests of victims to be a "good intention"? I am not informed enough about how "Youngkin and his flunkies" might wish to serve those ends, but I assume every (non-corrupt) politician has their own vision on "good intentions." Maybe that makes me naive, but I would just say I am hopeful.

Posted by: Doug B. | Nov 9, 2021 5:34:08 PM

I don't understand. You have an "open-mind" to reducing or eliminating chances for parole and filling jails by jacking up oppressive enforcement? I was pretty sure both of those were anathema to you, but I could be missing something possibly.

Also, how can you say you're "not informed enough"? You know quite well what Youngkin, Miyares, etc. plan to do. It's *literally* the excerpts of the articles you quoted. You have no reason to doubt their stated intentions, right? So, limiting yourself to just what you quoted, is it possible for you to form an opinion about that at least? If their "policy reality" falls short of their "political rhetoric"—i.e., they fail to reduce parole opportunities or increase oppressive enforcement—would you be "disappointed" by that or not? It seems like a simple enough question to me.

Finally, as should be exquisitely clear from the above—if it wasn't already—far from relying on "knee-jerk" reactions to "labels", I actually responded to the *contents* of Youngkin's and Miyares' nauseating proposals. Do you see the difference there?

Posted by: kotodama | Nov 9, 2021 8:17:14 PM

I'm not totally on board with the "neutral" above the fray tone in the response to kotodama. "Me troll? I'm shocked you would even think that!" Please.

I'm not really optimistic about the change in Virginia myself though if we are stuck with them, those who work on these issues for a living and so forth have to deal with it the best they can.

Big picture -- see Rachel Barkow or Emily Bazelon's books, for instance -- you can find some usefulness in a criminal justice sort of way in local governments of both parties. There is some possibilities there in various ways. Again, without more, I would not necessarily be inclined to be optimistic in this case.

Kotodama's first comment to me is more in response to past blog entries and comments then to this one. This blog comment is just a couple excerpts that don't exactly bode well for criminal justice reforms as seen through the eyes of this blog.

Posted by: Joe | Nov 9, 2021 10:38:54 PM

The article speaks of an "ongoing parole board scandal," kotodama, and I do not know the details. If the old parole board was breaking applicable law, that sounds like a problem that needs to be fixed. Doing so might improve the Virginia parole process, but I do expect Gov Youngkin to make parole even harder to obtain. But I also expected Prez Trump to increase the federal prison population and resist CJ reforms. Yet we saw a nearly 20% decrease in the federal prison population and passage of the FIRST STEP Act under Trump.
Similarly, I do not know about the "pretty horrific cases" that Miyares references, but I doubt he is eager to take control of all local low-level drug offenses in Northern Virgnia. Though I am not optimistic about Miyares' plans, I am disinclined to condemn how he uses any extra enforcement powers until I actually see how he uses any extra enforcement powers.

I suspect that I will not be keen on with how these two ultimately implement their vision of "law and order." But I readily acknowledge the possibility that they have a genuine interest in reducing crime and serving the interests of crime victims. More generally, I am always eager to wait until policy-makers actually act before assessing their actions. (And so, I am prepared to criticize Virginia Dems for failing to restore parole for post-1995 offenses despite talk of possibly doing so.) I surmise you are grumpy about how I have assessed Prez Biden's (lack of) action to date (and applauded some aspects of Trump's record), but I am just trying to call them as I see them.

Posted by: Doug B. | Nov 9, 2021 11:14:27 PM

I love it how Prof. B. brings up TP totally unprompted. It speaks to the depths of his fandom I think. Anyway, since that's changing the subject, I won't address that until the end.

Let's stay on topic shall we? Again, I think it's a trend here where Prof. B. bends over backwards to give Rs every undeserved benefit of the doubt. When it comes to Rs, we always have to "wait and see" don't we, because we can't possibly know their intentions, right? Never mind that they repeatedly state their intentions in the clearest terms, and/or you also have local experts (the VA news analyst) explaining what they plan to do.

For example: "I doubt [Miyares] is eager to take control of all local low-level drug offenses"

To start, I'm not sure he literally said all smalltime drug cases, so that's a bit of a strawman. But regardless, you concede you're "not optimistic about [his] plans." And again, you have no reason to doubt his goal of accomplishing those plans.

Likewise, at least you admit you "will not be keen" on their (Youngkin/Miyares) stated objectives. So, we're making a little progress!

But then we get to more inexplicable stuff. You want to "acknowledge the possibility that they have a genuine interest in reducing crime and serving the interests of crime victims." Based on what evidence though? And you already conceded you're not fond of their plans. So, is it actually ok for them to carry out their undesirable plans as long as they have some amorphous, undefined "genuine interest"? And here's some contrary evidence about their lack of "genuine interest in reducing crime": Just 2 days ago, Youngkin said the "real" insurrection was Nov. 3, 2020.


I'm struggling to see how someone who thinks an assault on the federal gov't was just NBD, and instead rants about fictitious crime, has anything close to a "genuine interest" in reducing it.

So over and over, you have them (Youngkin, Miyares, etc.) telling us exactly what's on their minds in the clearest terms, but apparently—for you at least—their intentions are just utterly inscrutable? I'd think of all people, a law prof who presumably considers himself quite savvy and sophisticated could manage to cobble together 2 and 2 into something in the range of 3.9—4.1.

One more before I wrap up:

"I am prepared to criticize Virginia Dems for failing to restore parole for post-1995 offenses despite talk of possibly doing so."

How courageous of you! Do you even know why it didn't happen? Was it because they suddenly changed their minds and said "no we actually hate parole!" or were they somehow prevented from carrying that out? We have very clear evidence now that Youngkin wants to *take away* access to parole. So I think we can pretty safely assume he also doesn't want to restore it at the same time, right? But according to your logic, if Youngkin in fact doesn't end up restoring parole either—in line with his obvious intent—that's actually better than Virginia Ds, because at least he never "talked about" doing it in the first place. Correct?

Let's do a simple analogy to really crystalize the Prof.'s logic:

Person A says to you "I hate your guts and I would never buy you a pizza for dinner tonight." That night, Person A in fact does not buy you a pizza dinner. You go to bed starving because you had banked on Person A supplying the chow.

Person B says to you "I adore you and I want to treat you with pizza dinner tonight." On the way back from the pizza shop to your house, Person B's car is hit by a drunk driver and the pizza is totaled in the process. You also do not get to enjoy a pizza feast that night.

Unless I'm really missing something, Prof. B.—any Ivy league-credentialed, tenured professor at a reputable university—sees entirely no difference in those two scenarios. Moreover, he would stay up until the wee hours every night of the week patiently waiting for Person A to bring over pizza, while complaining to everyone in sight about Person B's awful behavior. Do I have that right?

And, so to wrap up, back to your love affair with TP.

"we saw a nearly 20% decrease in the federal prison population"

Did he campaign on doing that? More to the point, do you even know what caused that? Any actions he took (I'll get to First Step separately) that you know actually contributed to that? Unless you know how it came about in the first place, I don't think you should be rushing to give anyone credit they might not actually deserve.

"passage of the FIRST STEP Act under Trump"

You keep coming back to that one—I guess you don't have much other material do you; certainly you can't brag about his death penalty record!—but it's not actually that compelling. For one, it's obviously not something TP campaigned on. It was Congress' initiative, so he takes zero credit there. Second, *every single* D in *both* the Senate and House voted in favor, so why do you completely ignore that and focus selectively on TP? It's almost like it's not by accident! In contrast, numerous Rs in both the Senate and House voted against. Since Prof. B. is repeatedly on record voicing his belief in the President's magical mind control powers when it comes to legislators of his own party, why no criticism of TP for the uncooperative R nay votes? And of course, TP refused to sign it at first, even though it was a complete no-brainer and Congress likely could have overcome a veto based on the margins—plus it was quite popular in his own caucus! Yes, he did eventually sign it, after who knows how much groveling and pleading by Kushner et al. But so what, are you going to rave and crow that he did something incredibly obvious, and only grudgingly and reluctantly, after wasting lots of time, when a person with actual sense would have gladly raced to get it done? If so, at least shower the same—or more—praise on all the D legislators who passed the Act willingly and enthusiastically. I think Prof. B. must be one of those people who loudly applauds the pilot every time the plane he's on makes a completely ordinary landing—in other words, something that's part of the pilot's basic job description. Does he feel hurt and unloved whenever he performs the heroic feat of being on time to teach his lectures and nobody shows up to hand him an award?

Oh, TP, that unsung champion of criminal justice, who, when he was left solely to his own devices in the Executive branch, wasted no time at all in cranking the machinery of the DP up to 11.

Posted by: kotodama | Nov 10, 2021 11:04:53 AM

It's not true that the Virginia parole board can only consider prisoners whose crime was before 1995. It can also consider prisoners who are over 60 and have served at least 10 years or who are over 65 and have served at least five years. See https://vacode.org/2016/53.1/2/2/53.1-40.01/

Posted by: Keith Lynch | Nov 11, 2021 12:22:49 AM

kotodama, you correctly assess that I care a lot more about CJ reform results than about intentions/promises. And let's get the pizza analogy right for recent US Prez: Candidate A says I will not get you any pizza, but then ultimately plays a role in helping others deliver a lot of pizza; Candidate B says I promise you lots and lots of pizza, but then seems content to pick up one moldy piece of crust on the way back from the store where he spends his money (political capital) on all sorts of other food. Thereafter, I think it important to note that, while A was in charge, lots of folks got pizza, whereas B made lots of pizza promises, but is yet to deliver any pizza.

Key point, which I sense you understand, is that actual "pizza" results play the central role in how I assess criminal justice reform records in retrospect (while also trying to urge everyone to do better). How much "pizza" was actually delivered can be assessed a lot easier than intentions --- e.g., do we really know Biden's "intentions" (in 1994 or 2021) about crime and punishment? what have been the Clintons' "intentions" here? Put simply, what one claims they want matters less to me than what one actually does. Of course, when hoping for future "pizza," we must often consider "intentions" because statements about what a politician "wants" may be all we have. But, as the record unfolds, I clap for those who deliver results, and I am critical of those whose actual actions do not match up with their stated "intentions" or "campaigns." Do you applaud the pilots who crash planes because they said at the start of the flight that they intend to land safely? It seem what politicians claim about CJ reform matters to you more than what they actually do.

If your only real metric is the death penalty, kotodama, I can see how you want to criticize the actual Trump results. But if you care about other facets of the federal sentencing system, I see the Trump era results as surprisingly delivering more pizza (e.g., 30,000 less federal prisoners), whereas all we have so far from the Biden era are crumbs (and 5,000 more federal prisoners). I hope we get more pizza from Biden, and I will clap if/when we do. But, so far, he seems to be the second consecutive D prez in his first term to talk big and actually deliver little pizza. But you are perhaps content when the pizza shop, day after day, keeps telling you that it really intends to get you some pizza eventually as long as you keep sending in those checks/votes.

Posted by: Doug B. | Nov 11, 2021 10:11:29 AM

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