AG Mark Herring Statement on Passage of Two of His COVID-Related Bills Out of Committee, One Criminal Justice Reform Bill Sent to House Appropriations

RICHMOND (August 26, 2020) – Attorney General Mark R. Herring issued the below statement following the passage of two of his special session bills out of committee that were from his COVID response legislative package. Additionally, one bill, that would give the Office of the Attorney General “pattern or practice” investigation authority, the most important measure in his policing and criminal justice reform legislative package, was sent to House Appropriations.

“Giving my office the ability to conduct ‘pattern or practice’ investigations would help identify and end unconstitutional policing practices, like excessive force, biased policing or illegal searches,” said Attorney General Herring. “The U.S. Department of Justice used to be a reliable partner in investigating and putting a stop to unconstitutional practices in police departments across the country, but, under the Trump Administration, these types of investigations have all but stopped completely, which is why giving the Attorney General’s Office this authority is so important.

“The COVID pandemic has highlighted many shortcomings in Virginia’s laws, programs and policies as well as exposed new needs that the Commonwealth has. Expanding Virginia’s price gouging laws to include PPE and other necessary items will help my Consumer Protection Section take action against those who would try and profit off of a state of emergency, like this pandemic.

“This pandemic has also exacerbated the economic and racial disparities that persist in communities across Virginia and has unfortunately put many families in tough financial situations. It’s so important that we protect economic relief payments from debt collectors during this time so that families can use that money to put food on the table or to pay their utility bills or rent. We must all work together to help get the Commonwealth through this pandemic and make this difficult time a little easier for all Virginians.

“I want to thank the patrons of these bills as well as the advocates, including the Virginia Banker’s Association, the Medical Society of Virginia, and the Virginia Association of Pediatrics, who have worked hard alongside my team and I to get these important measures passed.”

The Bills

1. Enabling the Attorney General of Virginia to conduct “pattern or practice” investigations (HB5072 Delegate Alfonso Lopez). This bill will give the Attorney General the authority to conduct “pattern and practice” investigations of law enforcement agencies to identify and put a stop to unconstitutional practices, such as patterns of excessive force, illegal searches, biased policing, or other unconstitutional practices. For decades the U.S. Department of Justice was a reliable partner in identifying and ending unconstitutional policing practices, often through negotiated agreements for reforms, called “consent decrees,” in cities such as Chicago, Baltimore, and Ferguson, MO. Under the Trump Administration the DOJ has explicitly walked away from this responsibility, making it more important for state attorneys general to have this important tool. In June, Attorney General Herring asked Congress to expand federal law to give him and other state attorneys general clear statutory authority to conduct patterns and practice investigations. The U.S House of Representatives included this authority in the “George Floyd Justice in Policing Act” which passed the House on June 25, 2020. The Senate of Virginia has already advanced the companion version of this bill, SB5024 carried by Senator Louise Lucas.
2. Expanding protections against price gouging for PPE and other necessary items during an emergency (HB5047 Delegate Kathleen Murphy, 13-9 vote). This bill will ensure that existing price gouging prohibitions also apply to manufacturers and distributors that charge unconscionable prices for necessary goods or services during a state of emergency declared by the Governor or President. Attorney General Herring’s Consumer Protection Section has received more than 500 consumer complaints and inquiries regarding suspected price gouging by businesses during the COVID-19 state of emergency and sent out more than 150 letters to businesses demanding that they cease any illegal price gouging. Investigation of these complains has revealed that many retail businesses claim that price increases occurred further up the supply chain with manufacturers or distributors, making it more difficult to address the problem at the retail level.
3. Protecting economic relief payments from debt collectors during an emergency (HB5068 Delegate Hala Ayala, passed unanimously). Attorney General Herring and Del. Hala Ayala have put forth this bill to ensure that economic relief payments actually benefit Virginians in need of support during an emergency rather than debt collectors. It will exempt state and federal emergency relief payments from garnishment, attachment, and other legal creditor process seizures. The CARES Act provided economic relief payments to millions of Americans to ensure they could pay bills, get groceries and medicine, and pay other needed expenses, especially for those who were laid off or had reduced hours, but no specific provision of state or federal law explicitly exempted these payments from debt collectors.

Ahead of the special legislative session, Attorney General Herring outlined his COVID-related legislative priorities that will protect Virginians and help get them through the COVID pandemic. In addition to expanding protections against price gouging for PPE and other necessary items during an emergency and protecting economic relief payments from debt collectors during an emergency, his other priorities include:

• Measures to help Virginians stay in their homes
• Mandatory payment plan. Attorney General Herring will support a mandatory offer of a payment plan based on a tenants’ ability to pay prior to initiation of eviction. The plan could last for up to six months and a tenant could only be evicted if they refuse a reasonable payment plan and/or breach the plan without good cause.
• Extending tenant protections to hotel/motel residents during an emergency. Virginians residing in hotels and motels for shorter periods of time generally do not benefit from the protections offered to longer-term renters with a lease. Attorney General Herring will support legislation to extend the traditional eviction protections and other tenant protection rights to hotel/motel residents during a state of emergency, continuing for 90 days after the end of a declared state of emergency.
• Eviction moratorium. Attorney General Herring will support a legislatively enacted moratorium on terminating residential leases and evicting tenants through April 30, 2021, except in cases where the tenant’s behavior poses a threat to the life, health or safety of the landlords or other tenants.
• Measures to ensure safe voting this fall. Attorney General Herring will work with Governor Northam and legislative leaders to ensure the Commonwealth takes any and all steps necessary to ensure safe voting and free, fair, secure elections this fall.
• Empower the Governor to suspend utility disconnections. Attorney General Herring will support legislation to empower the Governor, as the Director of Emergency Management for Virginia, to suspend disconnections of utility service providers (water, electricity, natural gas) in appropriate circumstances.

Additionally, Attorney General Herring outlined his criminal justice and policing reform legislative priorities. In addition to giving the Attorney General the authority to conduct “pattern or practice” investigations, his priorities include:

• Police Reform
• Modernize, standardize, and elevate the rigor of police training
• Department of Criminal Justice Services should be required to develop within a year a new basic training curriculum in conjunction with the Office of the Attorney General
• Current law enforcement officers must have 21^st century policing skills included in their annual in-service training curriculum
• Make it easier to remove bad officers from the law enforcement profession
• Expand police decertification criteria to include misconduct, not just criminal convictions
• Establish a more robust database of officer discipline, terminations, and decertification
• Ban rehiring of officers who are fired for misconduct or excessive force, or who resign during an investigation into misconduct or excessive force
• Create a “duty to intervene” for law enforcement officers
• Ban or limit dangerous, unnecessary, and potentially deadly police tactics
• Empower localities to establish citizen review panels
• Require the use of body worn cameras by all law enforcement officers
• Require law enforcement agencies and prosecutors to engage an independent agency or Commonwealth’s Attorney to conduct investigations and make prosecutorial decisions
• Criminal Justice Reform
• Cash bail reform
• Expanding opportunities for record expungement and simplifying the process
• Continued momentum toward legal, regulated adult use of cannabis and resolve past convictions