Richmond, VA -- The 2014 Session of the Virginia General Assembly left the ACLU of Virginia and its 10,000 members and supporters with little reason to cheer and significant reason to worry about the state of civil liberties in the Commonwealth when the General Assembly adjourns sine die. "Our work to protect the privacy of Virginians yielded some positive results, but, for the most part, Virginians concerned about freedom, equality, and justice have no significant successes to celebrate," said Claire Guthrie Gastañaga, Executive Director of the ACLU of Virginia.
Mental Health reform was a major issue during the 2014 General Assembly Session. To better ensure that these reforms protected the rights of Virginians who may be suffering from mental disabilities and their families, the ACLU of Virginia proposed principles to guide legislators in balancing the need for reform with the civil rights of all Virginians. "We're glad that the General Assembly's work on mental health reform conformed to the principles we laid out and both improved the system and preserved people's civil liberties," said Gastañaga.
One positive note was the important steps the General Assembly took to protect the privacy of Virginians. The General Assembly passed legislation (HB 17) that creates a warrant requirement for police seeking to access the real time data on the location of an individual's cell phone. The 2014 Session also saw the formation of the bi-partisan, bi-cameral Ben Franklin Liberty Caucus, whose mission is to "protect the privacy and liberty of Virginians against unnecessary intrusion by government agencies and law enforcement." The General Assembly carried over two bills (HB 1269 & SB 670) for further study, however, that would have placed limits on law enforcement's ability to engage in the warrantless collection and storage of personal information where no reasonable suspicion of criminal activity exists. "A growing number of legislators are recognizing that Virginians value their privacy," said Gastañaga. "The fact that our government has the ability to track and collect almost limitless amounts of data on individual Virginians does not mean it should. Law abiding Virginians expect, and deserve to go about their daily lives without fear that our government is watching them."
"This Session showed that the Commonwealth still has a long way to go to ensure equality for all Virginians," said Frank Knaack, Director of Public Policy and Communications of the ACLU of Virginia. "Not only did legislation designed to end inequality and discrimination fail to pass, but we also saw the introduction of public benefit drug testing legislation that is premised on unfounded stereotypes about those living in poverty and 'license to discriminate' legislation that will give people the right to discriminate under the guise of religious freedom."
Legislation (HB 417, 562, & SB 248) failed that would have expanded equality by prohibiting discrimination in state employment, and, thus, would have provided much needed protection to Virginia's LGBT state employees. Legislation (HB 747) failed that would have expanded equality by allowing students granted deferred action under the Department of Homeland Security's Deferred Action for Childhood Arrivals (DACA) program to apply for in-state tuition at Virginia's public universities and colleges. Legislation (HB 892 & SB 250) failed that would have expanded equality by prohibiting state agencies from asking interviewees about their criminal background until a conditional job offer was made.
Legislation (SB 330 & HB 612) passed that gives genetic counselors a license to discriminate by permitting counselors to deny services to individuals based on the counselor's religious or moral beliefs and by giving counselors blanket immunity from suit even if they act intentionally in a way that harms their patient.
The only good news was that legislation (HB 234) failed that would have restricted equality by requiring local social service departments to screen every Virginian participating in the VIEW program to determine whether probable cause exists to believe he or she is engaged in the use of illegal drugs. Unfortunately, the primary reason the bill didn't pass was its cost, not its discriminatory purpose or effect.
Criminal Law Reform
The 2014 Session was a mixed bag for the ACLU of Virginia's criminal law reform efforts. Legislation (HB 244 & SB 379) failed that would have raised the felony larceny threshold from $200 to $500, a positive change that would have better ensured that non-violent offenders did not end up in Virginia's prisons and jails and would have saved Virginia taxpayers millions annually. On the positive side, legislation (SB 607 and HB 1052) failed that would have permitted the Department of Corrections to default to the electric chair for executions if it could not secure lethal injection drugs. And, Virginia finally reformed its sodomy laws to decriminalize oral and anal sex between two consenting adults in the private. (SB 14).
"We are disappointed that the General Assembly did not adjust the Commonwealth's felony larceny threshold, which was set in 1980 and has not been adjusted since," said Knaack. "But, we applaud the General Assembly for rejecting the bills designed to make Virginia the only state in the country to default to the electric chair. At a time when serious concerns over the fairness and accuracy of Virginia's death penalty process exist, it is unconscionable to consider legislation focused on the method of execution rather than ensuring fair and accurate death penalty decisions. And while we have work left to do to remove other antiquated statutes from our Code (like laws barring adultery and intercourse before marriage), it's good to finally have the discriminatory sodomy law off the books."
School to Prison Pipeline
The 2014 Session saw positive movement in the effort to remove zero tolerance from Virginia's K-12 public schools. Legislation (HB 751, HB 752, and HB 198) passed that will grant school administrators greater discretion over the severity of punishment vis-à-vis drug offenses. Two other positive notes - legislation (HB 66) failed that would have mandated that each elementary and secondary school in the Commonwealth have a school resource officer on campus, and, thus, would have removed local school leaders' ability to make their own decisions about how best to ensure safety. Legislation (HB 624) also failed that would have mandated the addition of juveniles onto the sex offender registry if they were adjudicated delinquent for specific offenses, and removed judicial discretion. "This Session saw a growing recognition that local school officials and judges are better equipped than lawmakers in Richmond to determine on a case-by-case basis the appropriate level of punishment for children under their jurisdiction," said Knaack.
Lawmakers at the 2014 Session failed to address the numerous issues that limit or undermine the right to vote in Virginia. Legislation (SB 3 & HB 75, 119, 601, 622, & 800) failed that would have permitted no-excuse, in-person absentee voting. In addition, all proposals seeking to amend the Virginia Constitution to provide for restoration of rights either failed or were carried over for consideration until the 2015 session. "Hundreds of thousands of Virginians are unable to exercise their fundamental right to vote because of Virginia's Jim Crow era felon disenfranchisement laws and other restrictions on the right to vote," said Hope Amezquita, Staff Attorney & Legislative Counsel of the ACLU of Virginia. "Ensuring the right to vote is something that all Virginians should support, and it was unfortunate that there was no movement to restore and expand voting rights in the Commonwealth."
The 2014 Session saw the General Assembly push legislation that would allow the government to pick sides on the question of religion. Legislation passed (SB 236) that will either bring unconstitutional religious speech or an unworkable burden to Virginia's public schools. Governor McAuliffe has stated that he will veto SB 236. We have also asked Governor McAuliffe to veto legislation (SB 555) passed by the General Assembly that will permit military chaplains to use official, mandatory events to disseminate their personal religious views. Fortunately, legislation (HB 207) failed that would have would have invited public school teachers to inject their personal religious beliefs into public school science classes. "The Establishment and Free Exercise clauses of the First Amendment are two sides of the same coin," said Gastañaga. "When the government chooses its favorite faith, all those who follow a faith outside of the government's preferred faith suffer."
The 2014 Session saw a stalemate between those seeking to expand and restrict access to abortion. On the negative side, legislation (SB 617) failed that would have repealed Virginia's onerous mandatory ultrasound and 24 hour waiting period law, though it did pass the Senate. In addition, legislation (SB 618) failed that would have removed the current law banning the purchase of insurance coverage for abortion in the health care exchange. Finally, legislation (HB 74) failed that would have provided compensation for victims of forced sterilization, though a budget amendment to fund compensation is currently being considered as part of the budget negotiations.
On the positive side, legislation (HB 18, 19, & 20) failed that would have restricted access to birth control coverage through private insurance plans, and legislation (HB 98) failed that would have imposed criminal penalties on physicians for knowing a woman's intentions to terminate a pregnancy on the basis of sex. "The 2014 session showed that a majority in the House of Delegates still believes that a politician's place is between a woman and her doctor," said Katherine Greenier, Director, Reproductive Freedom Project of the ACLU of Virginia. "A woman's decision whether to have an abortion is a private medical decision that should be left up to a woman in consultation with her doctor, her family, and her faith."
ACLU-VA 2021-2022 Annual Report