Home Virginia Politics Mark Herring on the Road Across Virginia

Mark Herring on the Road Across Virginia


Mark Herring in Waynesboro photo 140328_Herring_Waynesboro_23_zpsb01ba314.jpgIn Waynesboro yesterday Mark Herring concluded a series of productive meetings with regional officials aimed at helping the top prosecutor’s office best serve the needs of communities. Unfortunately, many of the reports of these meetings have reduced the lessons to budget shortfalls. Problem? He isn’t carrying a rabid social agenda.

Herring began this meeting explaining that his heart is truly with local government where he got his start in politics. Before elected office, he served as the town attorney for a small town in western Loudoun County.

As Attorney General, he has taken three major initiatives: first, is a review of systems and operations to see that the Office is operating as efficiently and effectively as possible; next is a top to bottom review of all the services and programs the Office is a part of as well as the human capital that is linked to those; and, the third piece, what he was doing yesterday, is meeting directly with local law enforcement, those on the front lines protecting the community, so he can hear first-hand about the challenges they face as well as ways they have worked with the Office in the past and ways the Office might be able to help meet the challenges they face.

The series of 22 meetings have been incredibly informative according to Herring. There have been some common themes. Funding, he said, is always a challenge. But another common theme has been mental health. There are some regional differences which you would expect in a state as large and diverse as Virginia. While overall, violent crime is down, there are some areas that are continuing to experience gang problems. In some areas the gang problem is not as visible but the gangs have become an offshoot of organized crime. Some other localities are seeing continuing problems with meth labs and prescription drugs. He also pointed out that there can be the tendency, when you take a short period of time to talk about crime, which can lead to a misimpression of an area; that he knows these communities are safe locations where a lot of people are doing a lot of good work. And it is those local successes he wants to hear about as well.  

Captain Mike Martin of the Waynesboro Police Department kicked off the discussion of the Waynesboro, Augusta, Staunton region with the suggestion that one of the most rapidly evolving threats to our way of life in Central Virginia is the drug trafficking organizations followed closely by the gangs. He said that with the recent death of Waynesboro Reserve Police Officer Kevin Quick, we know the gangs are a problem but they are not the most significant problem. Drugs have always been an issue. Prescription drugs, methamphetamine, and heroine are probably the three most common in this area. There has been a significant amount of success creating informal relationships between the state and federal law enforcement assets.

Martin said that the biggest issues that they face are the Mexican organized methamphetamine trafficking organizations. They have found the local environment offers them freedom of maneuver. They can license vehicles without any sort of identification. They can walk into a Department of Motor Vehicles Office without any sort of identification. He asked that it be made harder for them to maneuver by making it difficult for them to get a license thereby making it easier for law enforcement to identify them with limited resources. Right now they are working a case with between 35 and 40 targets just in the Waynesboro area. They know their faces and their names, they use five or six different names, and police have a very difficult time identifying the individuals.

The clean-up of meth labs used to be funded by the Drug Enforcement Agency. Now it is an expense for localities that is impossible to budget for. Waynesboro spent $9,500 for three labs in the past year; not nearly the problem in Southwest Virginia. The average lab can fit on a table and costs between $2,500 and $3,500 to clean up; significant in smaller departments.

Prescription drugs are probably the most rapidly evolving issue, according to Martin. Waynesboro has seen a significant number of overdoses and deaths in the 20 to 25 year-old “crowd.” It appears to Martin that there are two career progression paths for youth: get out of high school and find a job or get out of high school and fall into prescription drug use and that “arena.”

“We have a ‘pill farm’ in this area known for writing prescriptions to out-of-state folks.” – Captain Mike Martin

Herring interrupted Captain Martin to ask if he had a sense of from where those drugs are coming into the community: over-prescription by physicians, prescription abuse by going to multiple offices, from out of the area, or a combination. Martin opined it is all of the above but mostly over-prescription and going to multiple sources (i.e. making the rounds). On any given day you can see Ohio and Kentucky tags where folks dive all the way here to get a very large prescription filled, Martin told the Attorney General. Then they turn around and sell it.

Describing local programs to combat the drug issue, Martin confirmed that Waynesboro uses DARE (Drug Abuse Resistance Education) and resource officers in the schools on the front-end. On the back-end there is the Drug Court, a community effort to reduce recidivism of first-time offenders or who demonstrate the potential for success in a deferral program. Herring asked about the outcome of the Drug Court system. Martin stated that he has seen very few cases and there is no feedback once he has sent them there, “But I will say I’ve never sent someone to the Drug Court and seen them fail.” The selection process is very strict because they do not want to invest the resources in someone who is going to fail.

“Nationally, statistics show that people who are given penitentiary or jail sentences, within three years, 67% recidivate. The recidivist rate for people who have gone through our Drug Court which has been in existence for 12 years, is 22%. So it has been very effective.” – Ray Robertson

Ray Robertson, Commonwealth’s Attorney, City of Staunton, noted that the three jurisdictions share the same court. It has been in existence for 12 years and he says it has been a tremendous success. It is for addicts, not dealers and they have to be in the program 18 to 24 months; methamphetamines require 24 months, most other drugs are 18. If they don’t show up at a meeting, they might have to pull a Saturday at the County Landfill. If they test positive, they go to jail. If they test positive a second time (they are randomly tested all the time) they go for a longer jail sentence. They pled guilty in the first place and the judge takes the plea under advisement, eventually reduces or dismisses it depending on how they do in the program.

They deal with a substance abuse counselor and probation officer five days a week, meet with a Circuit Court judge one day a week to see how they are doing. They are thrown into a pool of “similarly situated” people who are all, for the first time in their lives, trying to get off of drugs. They encourage each other; they have a bunch of responsible adults encouraging them. For most of them, it is the first time in their lives they’ve had a positive influence that is skewed toward getting them on the right track.

“…certainly we’d rather have people who become productive taxpaying citizens than people who become institutionalized. That’s what the Drug Court is all about and we’ve had tremendous success here.” – Ray Robertson

Asked by the Attorney General about addiction treatment outside the Drug Court track, Robertson responded that there is a program within the jails, the Valley Community Services Board and Recovery Choice over at Augusta Health plus a 28 day program in Charlottesville called Boxwood.  

“In fairness to the CSB (Community Services Board), I’ll say I’ve yet to see one that was funded in a way that they could fairly meet all the responsibilities placed on them” – Attorney General Herring

Waynesboro Mayor Bruce Allen wondered if cooperation between medical offices and law enforcement would be a way to “step up things.” Captain Martin told the group that there is training that allows personnel to have access to prescription records. HIPAA (Health Insurance Portability and Accountability Act) limits access. Martin suggested that if that tool were more available to local law enforcement to provide a method to see who the recurring customers are. Currently, no one in the Waynesboro Police Department can check on the prescription fill record of any John Doe at this time. Locally, a similar approach was taken with over-the-counter drugs and there was tremendous success with pseudoephedrine and impact on methamphetamine labs. That creates a choke point for production because they have to send out multiple folks to buy the base chemical.

There is a prescription monitoring program, to which there are two drug diversion agents assigned to the Appomattox Field Office covering 15 counties. It is well understaffed making keeping up with the case load to assist local law enforcement impossible.

Another side of the drug problem is manifest in crimes against property, according to Staunton Police Chief Jim Williams. Few people have the disposable income to support an addiction and many turn to crime like breaking in to support their habits. They have to get the goods then they have to pawn them. While pawn records are available electronically, precious metals sales are not monitored.

Referring to a bill that would have required precious metal sales monitoring but was defeated in the Virginia General Assembly, the Attorney General quipped, “I was wondering about the strength of the gold smelting lobby.”

One point that the Attorney General brought up anecdotally is that some of the visible signs of gangs are not there anymore; territory and signs and graffiti are gone but there is still gang activity. Gangs are less in the face of the community; they’ve gone more underground, more difficult to investigate.

Chief Williams brought up the costs of dealing with mental health. With a staff that is cut to bare bones to allow efficiency, he has only 51 sworn officers. By doubling the amount of time for emergency custody orders (ECOs) which requires two police officers, that two doubles to four. Then there are questions about feeding those under observation and transporting longer distances to available beds. Williams is not sure that law enforcement should have ever been in the business of mental health transportation in any case.

“We’ve had some nightmare scenarios. I realize we work 24/7/365 and ‘Who else is going to do it?’ but…numerous years ago we put somebody in a police car, handcuffed and body belt, and on the way to the hospital in Charlottesville he went into congestive heart failure. So there are some issues with transport. Really, probably ambulances rather than the backs of police cars and sheriff’s vehicles. I don’t know if we’ve ever gotten it right.” – Chief Jim Williams

Herring explained that he understood the challenges in the rural counties where there may be only two or three deputies covering the whole county. They take a patient to the emergency room (ER), really the only option, and they’ll stay in the ER and wait until they are evaluated. Often because of the triage process they are waiting several hours until the window is about to close and then they get evaluated. Then they have to transport that patient several hours to find a bed. Others have gone to CIT (crisis intervention training) and assessment centers which is resource intensive. On the other hand, pulling an officer off of the street or patrol for ten hours also comes with a cost and if the individual ends up in the criminal justice system that comes with a cost as well. He asked about local processes.

Chief Williams stated that Staunton, Augusta, and Waynesboro are working toward 100% of the officers getting CIT trained. There is also a transfer custody program with Augusta Health where security will take over and help us. The rub comes in when the crisis workers, another understaffed group, cannot find a bed closer than Richmond or Northern Virginia. With a minimum staffing of officers based upon population, if they have to drive someone to Richmond, it takes two of the 5 officers on duty and the 20 square city miles would be left in the hands of 3 police officers, so officers have to be called in on overtime.

“Before we change topics, I just want to say something about mental health. I’ve certainly heard loud and clear from meetings like this about how, (and I can understand the situation with the bed shortage and potentially to extend that ECO time period), but, I’ve also heard loud and clear how that can also just add to the drain on local law enforcement. There is a task force in the legislature that’s going to continue to look at it. And, I will be sure to share with them what I’ve heard and learned in these meetings. I’m hopeful that at some point the General Assembly will, and I’m sure that they know it, … but, mental health has been underfunded in Virginia for years. I don’t think that’s any big secret. And unfortunately that results in the criminal justice system being the default location where a lot of these patients end up. And that too has a cost. Maybe we can find a way to shift those costs to the front-end so that we don’t get them on the back-end.” – Attorney General Herring

When Herring asked what else is going on in the community, Chief Williams told about success with potential online sex offender investigations where investigators pose as 13 and 14 year old girls and sometimes boys surfing the internet. “My eyes were really opened when our folks first came back from school. They made some cases and took some pretty scary people off the street both in the community as well as folks willing to travel from Richmond and Tidewater just for the express purpose of trying to have sex with underage. I don’t know if that is something the Attorney General’s Office is interested in.”

“It is something that we do participate in; those efforts to stop that kind of child pornography. I continue to be shocked at how prevalent it is and how those who are engaged in it are more brazen than ever. And it tends to lead to that victimization to last in perpetuity once the images are out on the internet, but it also leads to contact and child prostitution. It is a big concern of mine. Our office is assisting others who are helping to fight this problem.” – Attorney General Herring

Like Captain Martin, Chief Williams asked about training. Herring responded that he would look; there is a lot of good training being done by the ICAC (Internet Crimes Against Children) task forces. Cybercrime and child pornography have grown so much that it is stretching everybody. The Attorney General’s Office does have some people that can conduct training and they can assist in computer forensics.

On behalf of a group of his fellow Commonwealth’s Attorneys, Ray Robertson raised the concern that there is not a felonious assault statute that makes it a felony if there is serious bodily injury. The current malicious wounding and unlawful wounding statutes require that there be an intent to kill, maim, or disfigure the victim. Proving that intent is very difficult. Robertson states that he and his colleagues would like to see a felony regardless of intent where there is significant bodily injury. Right now you can beat someone to near death and all they can be convicted of is assault and battery unless that intent can be shown.

Responding, Herring thanked Robertson for mentioning this. A couple of years ago Herring carried legislation to make strangulation a specific crime for the same reason. He was successful because he was able to show the Courts of Justice Committee that when strangulation occurs it is often in connection with domestic violence. It is one of the most lethal forms of domestic violence and involves elements of control. Prosecutors had come to Herring with the same rationalization: the requirement to show intent to kill was a difficult element to prove. As a result all it was was simple assault or domestic violence. Herring was able to get that bill through and understands the issue, and told the group he will pursue this.

Larry Wills, Chairman Augusta County Board of Supervisors stated that he was impressed by the cooperation between the agencies in the cities and county. On the county side, the one area he believes that has not received the funding it deserves is the Sherriff’s Department. The one area where the county has not gotten back to the pre-2007 funding levels is the Sheriff’s Department which is down four deputies in what is a large county. That is the equivalent of one shift plus an investigator. Wills argues that the state funding shortfall forces the County to supplement.

“We’re short on judges too.” – Ray Robertson

During his conclusion of the meeting, Attorney General Herring pointed out that one common theme evident at every stop during this tour has been the level of cooperation between departments and agencies. “I hope you all will consider me and my office one of your partners as you do your work. Whenever we can be of help to you, don’t hesitate to call us.”

The Attorney General’s Office has a staff of about 481, about half of them lawyers and most of them serve in the Richmond office. There are three branch offices: Roanoke, Abingdon, and Fairfax. Some of the staff is dispersed around that state on college campuses and assisting local prosecutors. The office’s Public Safety and Enforcement Division is the largest working a varied set of responsibilities from criminal appeals to the direct prosecution of a narrow band of cases to assisting local prosecutions when they can. This includes specialized support of investigations with skills such as computer forensics and financial analysis. The Office also does a lot of community outreach and education such as gang reduction programs and anti-human-trafficking training and information in an effort to assist localities in what they do day-to-day to keep our neighborhoods and communities safe.

Virginia Attorney General’s Office

  • Civil Litigation Division: This Division includes the following Sections: Consumer Protection/Antitrust and Consumer Enforcement, Insurance and Utilities Regulatory, Trial, Employment Law, Workers’ Compensation, Division of Debt Collection, and Sexually Violent Predators Civil Commitment.
  • Commerce, Environment and Technology Division: This division includes the following sections: Environmental Law, Financial Law and Government Support, and Technology and Procurement.
  • Executive and Administrative Division: This division includes the following sections: Opinions Counsel and Senior Appellate Counsel, and Solicitor General.

    Health, Education and Social Services Division: This division includes the following sections: Education, Health Services, Medicaid and Social Services, and Division of Child Support Enforcement.
  • Public Safety and Enforcement Division: This division includes the following sections: Correctional Litigation, Criminal Litigation, Health Care Fraud and Elder Abuse, Special Prosecutions and Organized Crime, Health Professions, Tobacco Enforcement, and Computer Crimes.
  • Transportation, Real Estate and Construction Division: This division includes the following sections: Construction Litigation, Real Estate and Land Use, and Transportation.

The commercial reporting of Herring’s meetings has been reduced to little more than cries for more funding and lists of topics, often missing critical discussions. That is a shame. These meetings have helped set a baseline for improving public safety by providing specific initiatives. Good to know that the Attorney General recognizes that a one size fits all approach is not going to work for every Virginia locality. Key to any success in the public safety arena is, as Ray Robertson pointed out, the quality of the people involved. But even the best personnel stretched to the breaking-point can’t deliver quality outcomes. Captain Martin suggested that there should be a strategic change in the way drugs, gangs, and criminal interdiction are addressed involving officers down to the newest patrolman. He asked for that training to have a gold standard curriculum established statewide the way leadership and crime scene investigation training are conducted.

Frankly, though, it really often comes down to staffing and priorities. An Augusta County organization sponsors regular training for the prevention and prosecution of elder exploitation and abuse which is attended by law enforcement and social services personnel from across the state. Waynesboro’s police and sheriff’s departments and Commonwealth’s Attorney office have not consistently been able to commit resources to attend these classes in their own backyard. They are not alone. So even if the gold standard training suggested is established, there is no certainty that anyone in any jurisdiction will be able to send attendees until positions which are left vacant are filled. And that too comes down to local priorities.

Nevertheless, the new Attorney General ended this tour of Virginia localities much better aware of the current and different realities across the state, prepared to better serve local communities. The short shrift paid by the commercial press is just another indictment of journalistic malfeasance.


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