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McDonnell submits ‘Hernandez’ amendment

Gov. Robert F. McDonnell has weighed in on Hernandez v. Commonwealth, the Supreme Court of Virginia decision earlier this year that said judges have the authority to defer judgment and later dismiss charges.

A legislative effort to override the decision passed handily in the House of Delegates but died in the Senate with a recommendation for referral of the issue to the State Crime Commission. We had an account last month of the Senate vote and the legislative action that led to it.

The governor has proposed a budget amendment (search for Amendment 3) that would require circuit judges to fill out a form to be submitted to the Virginia Criminal Sentencing Commission when they defer judgment in cases other than those for which legislation already permits it, most notably for first-time drug offenses and domestic assault. The form requires an explanation for any case resolved with deferred judgment.

The issue of the inherent power of judges to defer judgment without legislative approval had been bubbling for years, with defense attorneys insisting that judges have it and prosecutors responding just as adamantly that they do not.

Prosecutors said it would be possible for a judge to interpret Hernandez as permitting a judge to defer judgment and ultimately acquit defendants even for violent crimes and those that have mandatory minimum sentences.

That suggestion prompted Sen. W. Roscoe Reynolds, D-Martinsville, to warn 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.

McDonnell’s proposal appears to reflect that observation by collecting information about judges who defer judgment in such cases.

It does not address what most prosecutors view as the much more common practice of deferring judgment in general district court for such minor offenses as petit larceny, simple assault or trespassing.


  1. So now the head of the Executive Branch wants members of the Judiciary, the 3rd branch of government, to explain and justify exercise of a court’s inherent authority to act……..for what purpose other than intimidation?

    Many members of the Legislative branch apparently think that the passage of a bill will harness or restrict a court’s inherent authority. I guess those legislators don’t fully comprehend the meaning of the phrase “inherent authority”, and, along with the Executive, want to restrict the power and authority of an independent branch of government from exercising its inherent powers through the use of coercion or intimidation.

    Situations like this are exactly why there are three branches of our government, with powers to act independent of the other branches. The tension between branches is intentional.

    Although the Governor is an attorney, perhaps a re-reading of Marbury v. Madison, 1 Cranch 137, 177 (1803) by he and his staff, and the members of the General Assembly, is in order.

  2. I have to agree with Scott’s first observation. If a busy judge sitting with a full criminal docket is required to stop and complete and submit a form to the executive branch justifying his or her decision to suspend proceedings and defer sentence, whether or not it is intended to be intimidating, it will have a chilling effect and the judge will be less inclined to accept a request from a defendant or his/her counsel for such treatment. My cynical side tells me that the proposal was made for no other reason than to intimidate. Setting that aside and giving the Governor the benefit of the doubt, the net effect is still the same in practice: fewer judges will want to take the time to approve a S.I.S. outcome.

  3. Gov. McDonnell is a Republican, need I say more?

  4. To all those who may complain about the inherent authority of the judges, some questions:

    A) How many judges are there really who would ever take an unworthy case under advisement, especially over the objection of one of the parties?

    B) Would there ever really be a case where a circuit court judge would take a violent felony under advisement to be dismissed?!?

    C) Do the prosecutors really disrespect their judges’ reasoning and discretion that much?

  5. Douglas Robertson

    If treated like the Sentencing Guidelines, then this is a good proposal. It should be coming from the Supreme Court, though, and not the Governor or General Assembly.

    J. Martelino, Jr.-
    No judge is going to defer the DC Sniper, but what about crimes with arguably disproportionate sentences? A DUI-while-parked? A&B on police where the defendant gave a light shove? Certain carjacking situations? I have trouble believing that there’s not a single judge in Virginia who would never defer a case like any of these. Asking for transparency by a formal explanation doesn’t exactly chill the judge’s authority.

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