Blue Virginia

Tag: Price Benowitz

  • Welcome Changes to Antiquated Virginia Marriage Laws

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    By Amato Sanita, a criminal defense attorney in Bucks County, Pennsylvania. He practices in state and federal courts.

    Virginians will soon see some changes, as antiquated policies that would have let a 13-year-old girl marry a grown man are being eradicated and replaced. In a new law, which took effect last Friday, only adults 18 years old and older (16 years old for emancipated minors) will now be allowed to marry in the Commonwealth of Virginia.

    Under previous Virginia law, a girl who was 13 years old and pregnant could marry anyone with a parent or legal guardian’s consent. Under the newly enacted law, the notion of pregnancies determining marriageability are rightfully taken out and the minimum age is raised to being an adult, regardless of if parents want a marriage.

    This bill is aimed at curbing the number of forced marriages in Virginia, human trafficking, and statutory rape hidden in a marriage. The previous laws created what activists called a “fast-track to child marriage” for abusers which allowed them to simply marry the kids they abused. Human trafficking and slave labor, especially for children, continues to be a rising issue globally.

    In Virginia alone, there were 4,500 children under the age of 18 married from 2004 to 2013, with over 200 of those marriages including a child under the age of 15 years old. It is unknown how many of these marriages were forced or involved instances of human trafficking, abuse, and parental neglect. A little over 90 percent of all these marriages involved girls and often times their new spouse was over 21 years old or even decades older.

    The laws were able to be changed in a rare display of bipartisanship in Richmond, as the bill was championed and sponsored by State Sen. Jill Holtzman Vogel (R-Fauquier) and Del. Jennifer L. McClellan (D-Richmond). It passed 65-29 in the House and 38-2 in the Senate before being signed by Governor Terry McAuliffe.

    “Sex with a child is illegal,” McClellan stated, “but the way the marriage laws worked, if you were under 16 and pregnant, rather than punishing your assailant, you were allowed to marry them.”

    Teens who are married at this young age are far more likely to drop out before graduating high school and are also far more likely to suffer from mental or physical abuse. These marriages often end in divorce with the now 20-something bride left to raise multiple children with no education or financial support system.

    Similar measures are being introduced this year in state legislatures in California, New Jersey, Maryland, and New York as well, making Virginia a leader in fixing this terrible legal problem. Maryland currently allows 15 year olds to get married if pregnant or at 16 years old otherwise.

    Proponents of such measures, such as the Falls Church-based Tahirih Justice Center, see Virginia as the first stepping stone in ending forced child marriages in the United States. While it won’t put a stop to human trafficking, this is certainly a great first step with Virginia leading in change and growth.

  • Supreme Court Decisions Impact Blood Alcohol Tests for Motorists Suspected of Impaired Driving

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    By Shawn Sukumar, a DUI and criminal attorney in Washington, DC who practices in DC and federal court.

    Last week, the Supreme Court imposed limits on some state laws that criminalize motorists suspected of impaired driving from refusing certain blood alcohol tests.

    In what came down to three major decisions, the Court ruled that: 1) police officers must obtain a search warrant before requiring suspected motorists of taking a blood alcohol test, 2) police officers do not need a search warrant for a breath alcohol test, and 3) that states which impose criminal penalties on motorists who refuse blood alcohol tests are in violation of the Constitution.

    There are 12 states which impose criminal penalties on drivers who refuse to take a breath alcohol test. While North Dakota and Minnesota were the two states in question at the hearing, Virginia and neighboring Tennessee also have these same types of laws.

    In last Thursday’s decision, the Supreme Court gave a nod of approval to these laws, stating that there was “implied consent” when on government roads.

    Writing for the majority, Justice Samuel Alito stated breath alcohol tests don’t raise “significant privacy concerns,” as there is no piercing of the skin and no biological sample left with the government. On a day in which the Supreme Court deadlocked twice, it was a surprise in itself to see such an overwhelming decision.

    Justice Clarence Thomas went even further, writing his own opinion, in which he stated he would have found both the breath and blood alcohol tests fine without a search warrant.

    ”The Fourth Amendment prohibits such searches without a warrant, unless exigent circumstances exist in a particular case,” stated Justice Sonia Sotomayor, along with Justice Ruth Bader Ginsburg, as lone voices of reason in their dissent from the Court’s decision.

    They argued that no government function or entity makes it impractical for officers to obtain a search warrant. Stating that it would take no more than a few minutes to get either a late night judge or magistrate on the phone for the warrant, even in rural localities.

    The advocacy group MADD, Mothers Against Drunk Driving, hailed the decision as a victory and hoped that other states would soon join in implementing these criminal penalties. Many privacy groups, who sided with Justices Sotomayor and Ginsburg, saw it as a blow to the privacy and respect of Americans and their Constitutional rights.

  • Stanford Sexual Assault Sentencing and the Minimization of Sexual Assault

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    By John Yannone, a Partner at Price Benowitz LLP

    The Brock Turner sexual assault case has engendered quite a bit of outrage.  As it turns out, the reasoning behind public outrage is plentiful.

    Brock Turner, 20-year-old Stanford University swimmer, was sentenced to just six months in prison following a guilty finding in legal proceedings over a sexual assault case.  The charges were filed back in January 2015, after Turner was discovered behind a dumpster, on top of the unconscious and only partially-clothed, 23-year-old female victim, whom he sexually assaulted.

    Turner could have faced a sentence of up to 14 years in prison, causing critics to question the leniency of the sentence he received. The local prosecutor had been pushing for 6 years out of a possible 10; the 6 month sentence in a whole other ballpark. The debate is so contentious that some have even called for the presiding judge, Santa Clara County Judge and Stanford-alumnus Aaron Persky, to be removed from the bench, particularly following his comment that, “jail would have a severe impact on Turner.”

    This controversial sentencing also sheds light on gravely important judicial matters; namely, the minimization of sexual assault cases, and therefore the failure to impartially uphold the law, not to mention substantiation to already existing claims that our country’s most prestigious universities fail to uphold the federal provisions for gender equality in education – including the handling of sexual assault cases – as dictated by Title IX.

    Prior to this case making headlines, universities comprising the educational elite, particularly Ivy League institutions – were criticized for allegedly failing to uphold Title IX’s mandates. Columbia University was publicly exposed on numerous counts for its abject failure to handle cases regarding sexual assault and gender equality in accordance with Federal law.

    Could this mean that the educational elite in our country is sexist? Do they espouse the mentality of an ‘old boys club’ – inherently minimizing the gravity of sexual assault and the culpability of male offenders, and thereby neglecting to uphold true standards of gender equality? Could an unconscious bias – favoring the lens of a white, privileged, male – be obstructing justice on-campus and even providing for rampant sexual offenses to take place?

    The Department of Education’s findings do show that Stanford University’s reports of sexual assault are drastically higher than the median rates of reported sexual assault cases for its counterparts. Among colleges of comparable size, Stanford reports three cases of sexual assault for every one reported case; and among all colleges, Stanford reports a shocking 10 instances of sexual assault for every one case reported.

    Our once-presumed respectable educational institutions do not have a good track record when it comes to Title IX due to their failure to adhere to federal guidance and standards dictated by Title IX. In the absence of any oversight, these private institutions have not carried out the intent of the law in a number of instances. The question now becomes whether, victims of sexual assault –who are overwhelmingly women – are being adequately protected or supported equally.

    Another concerning element is Turner’s unabashed denial of culpability; he and his father both minimize and deny the extent of his wrongdoing. His father likened the crime to “20 minutes of action” – an insensitive and blatantly disrespectful minimization of the victim’s experience – and also of sexual assault and abuse cases in general.  Turner himself blames everyone but himself.

    Furthermore, it could be argued that Judge Persky does not appear to be immune from the bias of the white, privileged male. Some suggest that he used his own personal lens to rationalize Turner’s behavior, adjusting Turner’s sentence accordingly, citing factors such as: his age, academic achievements and scholarship, and his alcohol consumption. Whereas, these considerations are legitimate, the question is whether they were properly applied in this case to justify a sentence below the minimum guideline of two years.

    The question is whether this was an injustice perpetrated as a result of the application of advantageous factors so specific to the qualities shared by the white, privileged defendant and judge so as to yield lenient sentencing among those who share in this elitist bias.

    What about the underserved populations who are not granted the understanding compassion of a judge who can relate, and particularly women, whose unique experience cannot be properly understood by males with an inherent inclination towards minimizing crimes most often committed towards women? Is this an extension of laws regarding domestic violence and sexual assault which typically fall so short of justice?

    Sentencing guidelines were designed to remove the disparity in sentences.  Judges can go below the guidelines, but have to justify their decision addressing specific criteria.  The question raised by the lenient sentence in this case is whether the criteria are adequate to prevent manifest injustice or whether the judge perhaps misapplied the criteria.  Such a sentence is the precise reason for sentencing guidelines in the first place.

  • Virginia Felons Regain Voting Rights Following Governor’s Executive Order

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    By Karin Riley Porter

    Karin Riley Porter is a criminal defense attorney in Virginia with Price Benowitz LLP. Karin works out of her office in Fairfax, Virginia, and she handles cases involving white collar and federal crimes, complex DUI, and sensitive misdemeanor cases.

    By simply wielding his executive pen, Virginia Governor Terry McAuliffe has restored the voting rights of over 200,000 convicted felons within the state.

    Thwarting opposition from the Republican-majority legislature, McAuliffe declared the action an effective means to negate a Civil War-era voting rights restriction he believes was designed to disenfranchise African-American citizens.

    Critics of the move have characterized the Governor’s actions as an unabashedly opportunistic strategy meant to boost the fortunes of his long-time friend and ally Hillary Clinton in the upcoming presidential contest.

    Legal Authority for the Executive Order

    In Governor McAuliffe’s Order for the Restoration of Rights, he explicitly states the basis of his authority for restoring voting rights: Article V, Section 12 of the Constitution of Virginia.

    Article V of the Constitution of Virginia deals with the Executive Branch of the Commonwealth. Section 12 of this Article concerns the Executive Clemency Power. According to Art. V, § 12, the governor shall have the power “to remove political disability consequent upon conviction for offenses.”

    In addition, the Governor must communicate the particulars of every case, the type of relief granted, and the reasons for doing so to the General Assembly.

    Accordingly, the Constitution surely seems clear on the Governor’s power to grant back certain rights (or in this case, removing political disabilities) without granting every right or removing every disability that results from a criminal conviction. The Office of the Governor also released this Summary of the Governor’s Restoration of Rights Ordered Dated April 22, 2016 to explain the reasoning and authority.

    Order Follows Similar Initiatives in Other States

    McAuliffe’s move comes on the heels of increased national concern regarding what many feel are disproportionately harsh effects of criminal sentencing trends on African-Americans. Debates have been taking place in a number of state legislatures across the country, with the merits of restoring felons’ voting rights often assuming center stage.

    Virginia has long had particularly onerous restrictions under which convicted felons lose their voting privileges for the remainder of their lives, regardless of whether they had served their sentences or made a productive return to society. One advocacy group has estimated that nearly one out of every five African-American Virginia residents has historically been unable to vote as a result.

    Maryland Governor Larry Hogan previously vetoed a proposal in his state which would have restored felons’ voting rights. However, the state legislature amassed sufficient support to override his objection back in February. The result is that roughly 44,000 prior prisoners who are current probationers now may register to vote.

    Recent years have seen a definite shift toward lifting certain restrictions on felons, with nearly 20 individual states taking legislative action to help facilitate societal re-entry for those who have met the terms of their sentences.

    Executive Action Not Without Its Critics

    Virginia Republicans had fought back against proposals aimed at broadening felon voting rights, and believe that McAuliffe’s actions represent a significant executive overreach.

    Party chairman John Whitbeck stated that while he certainly agreed that individuals who have repaid their debt to society need to be aided in reintegration efforts, there is a limit to how far such measures should go.

    Whitbeck argued that it was improper for the Governor to restore voting rights to felons in a “blanket” fashion, especially considering that the grant of restoration extends to folks convicted of violent and heinous crimes including rape and murder.

    Opponents of the executive order emphasize what they believe is the highly-calculated political motivation behind McAuliffe’s actions in terms of the potential to improve vote tallies for Democrat candidates in the fall and into the future.

    They note that the Governor did not restore any other rights typically forfeited by felons, including that of gun ownership, and that restoration of the right to vote was not made dependent on the felons’ successful payment of court-imposed fines or victim restitution.

    Implications for the Future

    Immediately after Governor McAuliffe’s action, advocacy groups announced plans to fan out into Virginia communities to assist with voter registration drives within affected populations.

    It is important to note that the voting rights of convicted felons affected by this executive order can never be rescinded, even if a subsequent governor takes action limiting the rights of convicts released in the future.

    Because McAuliffe’s Friday order does not impact individuals released at a later time, the Governor plans to issue orders of this type each month to ensure that no gap in voting rights restoration occurs.