Last week the General Assembly considered two significant budget amendments offered by the Governor that I did not speak to in my most recent newsletter. I wanted to offer a few thoughts on these amendments, both of which were related to the pandemic.

Prison Census Reduction

First, the legislature approved an amendment authorizing the Department of Corrections (DOC) to release people from incarceration who have less than one year to serve. The policy does not apply to people who have been convicted of capital murder and sexually violent offenses, but it does apply to everyone else in the custody of the DOC who have less than a year to serve on a felony sentence.

DOC has the authority under this amendment to determine whether releasing the inmate is in the interest of public safety and the individual. This is significant because it is the first time since parole was abolished in 1995 that non-geriatric inmates may be approved for early release. This policy shift is also unusual in that it empowers the Department of Corrections, rather than the Parole Board, to make the determination.

Our prisons are crowded, and physical distancing during this pandemic is impossible. In order to prevent widespread infection, we need to reduce the population of some of our facilities. We are already seeing outbreaks in several of our state prisons.

Since the amendment was approved, DOC advises they will consider the following factors in making the release decisions: the type of crime committed by the offender, medical conditions of the offender, the existence of a documented and approved home plan, and the individual’s conduct as an inmate and risk for recidivism. DOC will also take into consideration the safety and wellbeing of the offender, the offender’s family, the availability of community resources and access to proper healthcare for any medical and mental health treatment. They will not approve the release of individuals with active court detainers.

May Elections

The second amendment I wanted to touch on failed. In Virginia, many municipalities, cities and towns have elections in the spring. The charters which established those cities and towns often require May elections and establish terms of office that expire June 30 of each election year. The primary elections in Wisconsin earlier this month highlighted concerns about voting during a pandemic. Governor Northam proposed moving the May elections to November because of concerns about adhering to physical distancing guidelines and having sufficient election workers, many of whom are older and at higher risk for complications from COVID-19. His amendment was applauded by many public health advocates and some local registrars.

The opposition to the amendment stemmed from concerns that many people have already voted in the May elections. If the elections were moved to November, the absentee ballots that have already been cast would be discarded. Localities had already spent money to print ballots and arrange logistics for the election. The November election would be completely different, so those resources could not be used in the fall. More to the point, those city and town charters have terms of office which expire on the 30 th of June. I am not certain that the Governor or the legislature had the constitutional authority to extend the term of office beyond that set forth in the charters. The amendment failed.

Many of the legislators who opposed the amendment, including me, hoped a special session could be called giving us an opportunity to move the May elections to June. This action would have bought us more time as we respond to the pandemic but also allow for elections consistent with local charters. Rather than call a special session, the Governor responded by exercising his authority to move the election back two weeks to May 19. The deadline for requesting an absentee ballot to be mailed to a voter is May 12. Everyone is encouraged to vote by mail.