James Fisher

Judge James Fisher, who hears cases in Rappahannock County, issued an opinion calling the law an unconstitutional infringement on judicial discretion.

When lawmakers voted to reform probation in Virginia earlier this year, they said their motive was simple: Stop people from getting sent back to prison for minor violations like missing an appointment or failing a drug test.

But three months after the new law went into effect, officials across the criminal justice system say the rules have led to confusion, inconsistent enforcement and, in some cases, deliberate pushback from judges and prosecutors.

“We spent two decades trying to reduce disparity in sentencing,” said Jody Fridley, deputy director of the Virginia Sentencing Commission, during a recent meeting. “This has just opened up the possibility for more disparity.”

The legislation lawmakers passed prohibits judges from incarcerating probationers for their first technical offense and limits punishment for a second technical offense to a maximum of 14 days in jail. Only after a third offense is a judge allowed to impose a longer sentence.

The legislation also caps probation at a maximum of five years for a felony and one year for a misdemeanor. The measure was championed by Democrats, who celebrated the new law with a bill signing that featured rapper Meek Mill, whose own experience with probation helped make the case for the new law.

But in practice, confusion remains about what exactly counts as a technical violation. To illustrate the issue, Fidley described two recent cases in which a sex offender was issued a parole violation for attempting to contact a minor online. In one jurisdiction, the probation officer wrote it up as a major violation because the terms of the probation included special provisions barring use of social media and contacting minors. The approach led to a sentence recommendation of between three months and one year.

In another jurisdiction, a probation officer cited it as a technical violation because it was interpreted more generally as failing to follow instructions, which is not considered a major violation. Because it was a first offense, no term of incarceration was recommended.

Members of the sentencing commission, which sets sentencing guidelines and tracks how often judges follow them, said they believed the issue could be resolved with further guidance. “We can’t allow this kind of disparity to continue,” said Sen. John Edwards, D-Roanoke, who chairs the Senate’s judiciary committee. “It’s too confusing for too many people.”

Other questions about the law, however, will likely be more difficult to untangle.

The strongest rebuke of the new law has come from Judge James Fisher, whose circuit includes Rappahannock County, who issued an opinion calling the law an unconstitutional infringement on judicial discretion. As a circuit court judge, Fisher’s ruling does not set precedent and has no bearing outside of his courtroom, but he has directed the local probation department to continue reporting violations to him using the old guidelines.

“Exactly what to do with a given probationer when he or she violates the court’s order of supervised probation is squarely within the realm of judicial discretion,” he wrote. “These considerations may not be justly micromanaged by legislation because they necessarily require individualized analysis of considerations and circumstances too numerous to detail.”

Fisher, who recently made news for ordering the alleged victim in a domestic violence trial jailed on a contempt charge, has a reputation for harsh sentences. But some of the issues he raised with the new law are shared by other judges, prosecutors and probation officers.

He noted it is a common practice in Loudoun and other jurisdictions to wait for multiple technical probation violations to accrue before bringing a defendant back to court. In those cases, he noted that multiple offenses could all be considered a first offense, meaning the judge could issue no punishment.

“An offender … who absconds from supervision after repeated probation failures and who remains at large for a lengthy period of time may be treated as a first offender for violation purposes, while a different offender who is brought to court immediately after each and every separate violation will after a third adjudication be subject to an enforcement penalty,” he wrote.

The sentencing commission reported that some judges are reportedly sidestepping that potential dilemma by simply treating each technical violation as a separate hearing, meaning that a defendant could rack up three or more offenses in a single day.

In addition to concerns about sentencing disparities caused by the disparate approaches, commission staff worried that a move by probation officers to begin sending every technical violation to court could end up hurting the criminal defendants the law was supposed to help by leaving them with an even longer criminal history than they might have faced otherwise.

They also worried that the law might be leading some judges and prosecutors toward harsher sentences in the first place. “Some prosecutors have said they would be adjusting their plea agreements … because of the limited possibilities for returning defendants to court for public safety reason,” Fridley said. “The analogy that they use is they get one bite at the apple now. Do they take the risk?”

Supporters of the law voiced frustration with what they view as efforts to circumvent its intent.

Del. Don Scott, D-Portsmouth, who proposed the legislation, called the practice of treating multiple simultaneous violations as separate offenses an unintended loophole. “That would not be my intent,” he said. “Hopefully next year we’ll be able to clean the language up.”

Brad Haywood, the chief public defender in Arlington and the executive director of Justice Forward, which helped author the legislation, said the fight illustrates how deeply ingrained the ‘90s-style, tough-on-crime attitude is in the criminal justice system — even as policy makers take steps toward reform.

“We’re finding a lot of people really believe in it, really committed to it,” Haywood said. “We’re developing new reform opponents in different parts of the justice system we never really anticipated. That’s really disappointing.”


This article originally appeared in The Virginia Mercury, an independent, nonprofit online news organization covering state government and policy.

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