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House rejects ‘inherent authority’ of courts

A bill that attempts to take away the inherent authority the Supreme Court of Virginia says state judges have to defer and dismiss criminal charges cleared the House of Delegates today on a 76-22 vote.

House Bill 2513, patroned by Del. C. Todd Gilbert, R-Woodstock and supported by prosecutors and a host of law enforcement organizations, was introduced in response to the Supreme Court’s decision on Jan. 13 in Hernandez v. Commonwealth.

As amended, the proposed law says, “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.”

Ten state laws permit deferred judgment in certain instances, most notably for first-time drug offenses and domestic assault.

Prosecutors long have contended that judges lack the authority to defer judgment in any other cases, while defense attorneys contend that courts have the inherent authority to do so.

Defense attorneys contend that the legislature may be setting up a separation of powers issue in which courts could hold that the legislature lacks the power to limit their discretion.
By Alan Cooper


  1. OK, so if this law passes, judges will simply take one step back and takethe finding as to whether the evidence is sufficient under advisement. The the General Assembly will pass a law saying they can’t do that either. Once this happens, the Commonwealth will find that they are losing a lot more cases because judges will simply declare the evidence insufficient in those close cases were deferral is the norm.

  2. This is worse than a “cure in search of a problem”…it will create problems and eliminate a useful dispute settlement tool. A deferred disposition makes a lot of sense in certain cases. I believe judges know how to handle that authority.

  3. What about the situation where the Commonwealth agrees that the best solution is deferred prosecution? This bill would eliminate that option, is that what prosecutors really want to happen?

  4. Robert W. Lawrence

    I believe the General Assembly would be creating more problems for the Commonwealth if this statute is passed. Allow the judges to exercise their independent judgement in every case, but draft the statute so the commonwealth could appeal in appropriate circumstances. The higher courts would then be able to correct a miscarriage of justice under circumstances where a trial judge has erred. A convictiom in every case does not solve the issues confronting the Commonwealth of Virginia.

  5. I guess the General Assembly hasn’t really tried to understand the import and meaning of the phrase “inherent authority”. Such authority cannot, by definition, be constrained nor limited by legislation. This isn’t like a legislative expansion or contraction of a court’s jurisdiction.

    What a waste of resources, setting up an unnecessary battle between the legislative, executive and judicial branches of government. I suppose Marbury v. Madison is now supposed to be an irrelevant footnote in history.

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