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Statute mitigating probationers’ penalties struck down

Virginia Lawyers Weekly//August 30, 2021

Statute mitigating probationers’ penalties struck down

Virginia Lawyers Weekly//August 30, 2021

Where the General Assembly enacted a statute that prohibits courts from enforcing certain probation violations, the statute violates the separation of powers clause in the Virginia Constitution.


A defendant placed on supervised probation is subject to 11 mandatory rules and requirements:

“1. Obey all Federal, State and local laws and ordinances,

“2. Report any arrests within 3 days to her supervising probation officer,

“3. Seek, maintain and report any changes in employment,

“4. Report as instructed,

“5. Allow probation officer to visit her home or place of employment,

“6. Follow instructions and he truthful, cooperative and report,

“7. Refrain from alcohol use,

“8. Refrain from possession or distribution of controlled substances or paraphernalia thereof,

“9. Refrain from ownership, use, possession or transportation of firearms,

“10. Maintain residence in and stay within Virginia unless permission. to leave state granted, and

“11. Do not abscond or abandon probation supervision[.]  …

“In the passage of Code§ 19.2-306.1 during the 2021 session of the General Assembly, the legislature defined the probation terms and conditions set forth above from 2-11 as ‘technical violations’ of probation for which the court may take no action to enforce its order regardless of the number of separate violations.

“While the legislative prohibition against enforcing the court’s order of probation through a revocation of a suspended sentence is purportedly for a first time ‘technical violation,’ a trial court is further prohibited from imposing any penalty or enforcing its order regardless of the number of such violations or the span of time over which they occurred if they are part of the same revocation proceeding.

“Thus, an offender … who absconds from supervision after repeated probation failures, and who remains at large for a lengthy period of time, may be treated as a first offender for probation violation purposes, while a different offender who is brought to court immediately after each and every separate violation will after a third adjudication be subject to an enforcement penalty.”

The defendant in this case concedes that she violated conditions 6, 10 and 11. “For reasons that are unclear, the Commonwealth’s Attorney for Loudoun County has agreed with the Public Defender for Loudoun County that the new code section referenced above must apply retroactively to the Defendant and that she should be released without sanction.”


The court finds that retroactive application of Code§ 1-239 is discretionary, rather than required. The court notes that the statute, in authorizing retroactive application, uses the word “may.”

“A court may certainly apply newly enacted mitigations of punishment to an existing probationer. But there should be some showing of good cause for exercising its discretion to do so, such that a court may make an informed judgment as to the appropriateness of extending such mitigation.

“Such a showing might include, among other things, the history of the offender in the criminal justice system, or their past performance on probation as a whole.

“In sum, there should be a reason, predicated upon reliable and convincing evidence and argument of counsel, that the court finds to be suitable and appropriate to the case and the offender. Here, none was offered that the court finds convincing.”

Separation of powers

“[A]ny extension of a newly enacted mitigation of punishment to an existing probationer should be accomplished by legislation that does not impermissibly encroach upon the independent function of the judiciary. …

“In considering whether the whole power of another branch of government has been

exercised in violation of the constitutional requirement of separation of powers, ‘the common determinative factor is whether the governmental branch constitutionally vested with authority retains the final decision-making power.’ … (emphasis added).

“The General Assembly, by passing §19.2-306.1, has assumed the power of judgment and discretion that a court would wield, and arbitrarily strips the court of the final decision-making authority as to the disposition of any given first case of probation violations.

“Moreover, it does so in a vast and comprehensive way by predetermining the disposition of 10 categories of probation violation, all of which are conditions of a court’s order suspending a sentence and placing a defendant on probation.

“This assumption of the enforcement power of a court order leaves the court with nothing to do that is not ministerial in nature. The statute globally and equally defines misconduct on probation ranging from failure to return a phone call, to peddling drugs and possessing firearms, and thereafter determines that the penalty or disposition of such probation violation is nothing. …

“Exactly what to do with a given probationer when he or she violates the court’s order of supervised probation is squarely within the realm of judicial discretion. It involves a determination of amenability to probation as a method of rehabilitation (i.e. ‘second chances’ or ‘final warnings’).

“It involves assessments of credibility. It involves a potential reassessment of needs for both a probationer, or perhaps society, based upon additional information concerning the offender that may not have been known or in existence at the time of the original sentencing.

“It involves a weighing of the particular alleged violations of the court’s order as either isolated incidents or cumulative aggravators. These considerations may not be justly micromanaged by legislation because they necessarily require individualized analysis of considerations and circumstances too numerous to detail. For this, judgment is required. …

“[T]he court finds that Code§ 19.2-306.1 violates the Constitution of Virginia.”

Commonwealth v. Coppage, Case Nos. 1032817-00, 1032817-02 1032817-03, July 22, 2021, Loudoun County Circuit Court (Fisher) (Opinion and Order). VLW 021-8-095, 12 pp.

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