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McDonnell submits ‘Hernandez’ amendment

Alan Cooper//March 31, 2011

McDonnell submits ‘Hernandez’ amendment

Alan Cooper//March 31, 2011

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.

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