Virginia committee considers bill giving first time offenders a break

RICHMOND, Va. (AP) - A showdown is brewing in a Senate committee over whether judges can give first-time offenders a break by sparing them a conviction as long as they stay out of trouble.

The Courts of Justice Committee is scheduled to consider legislation Wednesday that would prohibit judges from using this authority to defer convictions, unless the prosecutor agrees.

Del. Ben Cline, R-Rockbridge, proposed the bill in response to a 2010 Virginia Supreme Court ruling that said judges have broad authority to defer convictions.

The ruling in Hernandez v. Commonwealth prompted a backlash from some lawmakers, who claim it undermines their constitutional authority to write laws that judges are required to apply.

"When we speak on criminal matters, we hope and expect the courts to listen," Cline said at a committee hearing on his bill Monday.

The chairman of the Senate courts committee, Republican Sen. Thomas K. Norment Jr. of James City County, suggested the bill would improperly erode judges' discretion.

He proposed an amendment to do the opposite of what Cline intended: make it clear that all judges have authority to defer convictions.

Norment also lashed out against the House Courts of Justice Committee for questioning judges who are up for re-election about whether they have used their authority under the Hernandez ruling to delay disposition of cases.

In Virginia, all judges are elected by the legislature. Cline acknowledged that judges are being questioned on the issue but said it is not a litmus test for re-election.

Norment, however, said the grilling is having "a chilling effect" on the judiciary.

"What the House is embarking on with this is intimidating judges. End of discussion," Norment said.

Delaying disposition of a case allows a judge to monitor a first-time offender's behavior and give him a second chance if he stays out of trouble and meets conditions set by the court.

It is viewed as a way to avoid punishing someone for an impulsive mistake and giving someone a criminal record that could damage job prospects or a promotion.

"There may be occasions when a judge would like to cut a break to a nice, clean-cut kid who is on his best behavior in court," said Sen. Mark Obenshain, R-Harrisonburg. "But other people don't get an opportunity to be cut a break. This is a dangerous precedent in terms of treating people differently."

Henry County Commonwealth's Attorney Bob Bushnell said the decision of whether to go easy on a first-time offender rests with prosecutors.

"If a judge wants that kind of discretion, he should resign and run for commonwealth's attorney," Bushnell said.

The committee delayed action on the bill, and on Norment's amendment, until its Wednesday meeting.