Legislative attack on ‘inherent authority’ of courts is killed

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A Senate Courts of Justice subcommittee has killed the legislative effort to reverse the Supreme Court of Virginia’s recent decision that state judges have the authority to defer judgment and later dismiss charges.

Prosecutors and representatives of law enforcement groups said the ruling in Hernandez v. Commonwealth would allow judges to ultimately find defendants not guilty even though the law and the evidence would support a conviction for a violent felony or offenses that carry a mandatory prison term.

But last night the subcommittee chairman, Sen. W. Roscoe Reynolds, D-Martinsville, had a warning for judges who might be inclined to stretch that power as far as some prosecutors fear they might.

“A judge who does that may be taking a risk the judge doesn’t want to take” if he expects to be reappointed by the legislature, Reynolds said.

The bill that Del. C. Todd Gilbert, R-Woodstock, presented to the committee, House Bill 2513, already was substantially weaker than the measure the full House approved by a 76-22 vote. The proposed bill read:

“No court shall have the authority, upon a plea of guilty or nolo contendere or after a plea of not guilty, when the facts found by the court would justify a finding of guilt, to defer proceedings or to defer entry of a final order of guilt or to dismiss the case upon completion of terms and conditions except as provided by statute. In no case shall the court defer entry of a final order of guilt for more than 60 days following conclusion of all of the evidence.”

Aware that such language was not likely to get through the Senate, Gilbert amended the bill to allow deferred judgment in the very relatively few instances now permitted by statute, such as domestic assault and drug possession, and for crimes other than violent felonies, drug distribution, most sex offenses, child and elder abuse and injury or death caused by drunken driving.

That would leave judges with the authority to defer judgment in such relatively minor offenses as petit larceny, where Gilbert acknowledged to the subcommittee “the problem is going to continue to be.”

Senate Committee Counsel Steven D. Benjamin said the legislature typically has addressed issues with uncertain consequences such as the likely impact of Hernandez only after thorough study. He also suggested that the legislature might be setting up a constitutional conflict that could be avoided by further analysis.

The opinion was based on the inherent power of judges to decide cases, a principle that the court might find that the legislature is powerless to limit, Benjamin said.

With that, the subcommittee, acting on a motion by Sen. Janet D. Howell, D-Fairfax, passed the bill by indefinitely and referred the issue to State Crime Commission.

After the hearing on the bill, Gilbert said he understood the reluctance of the subcommittee to respond strongly to the decision barely a month after it had come down. “There are too many moving parts. It’s too complicated.”

Many judges in the state had refused to defer judgment in cases other than those permitted by the legislature even before the Virginia Court of Appeals ruled to that effect when Hernandez was before it. After the Supreme Court reversed Hernandez’ conviction, those same judges will be less reluctant to do so, Gilbert said, although he acknowledged that he expects few judges to defer judgment in the types of cases his bill would have barred.

Still, he said, “I think it’s going to be a patchwork all across the commonwealth. There will be different justice from one county to another, and that’s certainly a problem.”

He referred to the contentious hearing last week for candidates for a Supreme Court vacancy, when members of the House Courts of Justice Committee ended a joint hearing with its Senate counterpart after senators said they thought it was inappropriate for the candidates to be asked how they would have ruled in Hernandez. The two committees then interviewed the candidates separately so that the delegates could press the candidates on the point.

Gilbert said he expects the courts committees to ask prospective judges and judges up for reappointment what their philosophy is on deferring judgment and to give substantial weight to their responses when deciding whether to appoint or reappoint them.