On April 22, Gov. Terry McAuliffe signed an executive order restoring the civil rights of approximately 206,000 convicted felons who had served their time and are no longer under any supervised release.
This was not an entirely unreasonable thing to do. In fact, many think it is very much the reasonable thing to do. Most states automatically restore civil rights upon completion of a sentence (details vary from state-to-state, of course).
Virginia is one of only ten states that do not. Virginia’s constitution specifically requires some action by the governor: “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor.” That’s a provision that’s been in the state constitution, in one form or another, since 1830.
Every previous governor has taken that to mean a felon must file an application – each governor had a different process, and a different criteria for evaluating that application.
Over the years, the trend has been toward forgiveness, with each governor restoring more rights than his predecessor. Even Bob McDonnell – an otherwise tough-on-crime Republican – bragged that “I’ve restored more rights than any governor in Virginia history.” He framed his actions in the context of his faith. “We are a nation of second chances; we believe in redemption and restoration. It’s the right thing to do.”
In his final year in office, McDonnell even simplified a process he had already streamlined once before. At first, McDonnell required non-violent felons to wait two years after they had completed their sentence and then file an application. Those convicted of violent crimes had to wait five years.
In May 2013, McDonnell announced that he was dropping both the waiting period and the application for non-violent felons. Through the rest of his term, those felons would have their cases automatically considered once their sentence was served.
By the time he left office, McDonnell had restored the rights of 8,013 Virginians.
The difference between what McDonnell did and what McAuliffe did is one of both scale – and process. McDonnell felt constrained by the Virginia Constitution and believed it required him to act individually even if that meant signing 8,013 pieces of paper – he couldn’t just issue a blanket order. “An executive order is probably beyond the scope of my authority,” McDonnell said.
McAuliffe got different legal advice, and simply signed his “Order for the Restoration of Rights.” The Virginia Supreme Court will soon tell us – perhaps as early as August – whether he really had that power, or whether he has to restore each felon one-by-one.
The governor probably thought this would be simple. We’re finding out now it’s not.
Politically, McAuliffe expected some blowback. McDonnell focused on non-violent felons; McAuliffe included all felons, regardless of whether they had committed violent crimes. That, of course, gives opponents the easy (but accurate) line that he’s making convicted murderers and sex offenders eligible to sit on juries.
McAuliffe anticipated this line of attack, saying on the day he signed the order: “There may be some individuals who will try and demagogue this issue and will make reckless accusations. Our action today does not pardon or change the sentence for any man or woman affected by this plan. These individuals have completed their sentences. They have atoned for their actions.” Atonement – that’s a high-minded concept that would make for a fascinating political conversation. Except that’s not the one we’re having.
What McAuliffe clearly didn’t expect was a different line of attack – that his database of those who are eligible for restoration is simply a mess.
Prosecutors – especially Republican ones – quite naturally went looking through that database to see who was in there. The general public can’t; you need to know Social Security numbers to look people up. We don’t have those; prosecutors with case files do.
First they found some felons who are still behind bars on the list – including a murderer serving a life sentence. The governor brushed off the database as “a work in progress.” Oh. “With 206,000 names and 17 million bits of information, there’s going to be data entry problems,” he said.
More prosecutors got curious – including the Commonwealth’s Attorney in Nottoway County. Terry Royall’s rural county in Southside includes a unique facility called the Virginia Center for Behavioral Rehabilitation. This is where sex offenders who have completed their sentence – but are still deemed too dangerous to release – are sent, under a process called “civil commitment.”
Of 370 sex offenders at the center, Royall found that 132 were listed on the database as having their rights restored. The response from the governor’s office – it pulled those 132 names from the database, saying they weren’t supposed to be covered by the restoration order.
Did the governor thank Royall for spotting this error and helping improve this “work in progress”? No.
Instead he blamed the messengers, both Royall for finding the information and The Washington Post for reporting it. “Faulty reporting, I guess you can chalk it up to, or commonwealth attorney didn’t know what she was doing, I guess,” McAuliffe said. His staff called it “yet another partisan attempt to spread misinformation and hysteria.”
Partisan? Royall is an independent.
Misinformation? It seems the misinformation was that the 132 sex offenders were originally on the list of those whose rights were restored when they shouldn’t have been.
Didn’t know what she was doing? Royall knew exactly what she was doing – more so than whoever compiled the governor’s database.
Instead of having his spokesman blame Royall for being “more interested in scoring political points,” the governor should send her a “thank you” – and an apology. Perhaps he has such a work in progress?