Attorney General Mark R. Herring has again successfully defended the Virginia Values Act, a landmark piece of civil rights legislation that protects LGBT Virginians and others from discrimination, against another legal attack by conservative activists. After oral arguments in Loudoun County Circuit Court on July 16, 2021, Judge James E. Plowman, Jr. ruled from the bench in favor of Attorney General Herring on nearly every count in the case, known as Calvary Road v. Herring.
“Our landmark civil rights protections will remain in place, and Virginia will remain a place that is open and welcoming to all, no matter what you look like, where you come from, how you worship, or who you love,” said Attorney General Herring. “I was proud to support passage of the Virginia Values Act and am so proud of our work to successfully defend the law twice against legal attack. As CNBC recently confirmed when it named Virginia its ‘Best State for Business,’ inclusion and diversity make our Commonwealth stronger.”
In March, Attorney General Herring successfully defeated a challenge to the Virginia Values Act brought in federal court by the same conservative activist legal operation in a case called Updegrove v. Herring.
In successfully defending the Virginia Values Act in this case, Attorney General Herring and his team explained the importance of LGBT discrimination protections, writing in legal briefs that “Virginia’s elected leaders sought to protect the Commonwealth’s more than 300,000 LGBT residents from the type of discrimination that has long infected public life.” The briefs also explained that the plaintiffs lacked standing to challenge the laws because they had not actually been harmed by them. The Court agreed and dismissed every claim regarding the Virginia Values Act and its protections against unlawful discrimination.
Because the judge ruled from the bench, an order consistent with his ruling will be entered in the coming weeks.
AG Herring files amicus brief to support Biden-Harris Administration rule broadening the scope of Title X family planning grants
RICHMOND (November 30, 2021) – Attorney General Mark R. Herring has filed an amicus brief in Ohio v. Becerra in support of the new Title X rule promulgated in 2021 by the U.S. Department of Health and Human Services (HHS) that removes harmful restrictions put in place by the Trump Administration. The new rule will result in the distribution of Title X funds to a greater number of family planning and related preventive health service providers that deliver care to millions of low-income or uninsured individuals and others. Attorney General Herring has joined a coalition of 24 attorneys general in filing the amicus brief.
Title X is the only federal grant program that funds family planning and counseling programs to help patients access contraception, as well as breast and cervical cancer screenings, screenings and treatments for sexually transmitted infections, and other related health services.
“Title X has been instrumental in giving women in low-income communities access to family planning programs, and preventative and reproductive healthcare, but unfortunately, with its ‘gag rule’ the Trump Administration worked hard to limit a woman’s ability to make her own choices about her body,” said Attorney General Herring. “The Biden-Harris Administration’s new Title X rule will remove those harmful Trump-era restrictions and distribute Title X funding to a greater number of healthcare providers, in turn helping more families across the country. I am proud to join my colleagues in supporting this new Title X rule that will give low-income and uninsured individuals in Virginia and around the country better access to healthcare.”
Attorney General Herring’s brief supports the new HHS rule, issued in 2021, that broadens the scope of federal grants under Title X, in part, by eliminating the harmful provisions of the 2019 Trump Administration rule — also known as the “gag rule.” The 2019 rule 1) imposed onerous requirements for physical separation between abortion and non-abortion services at clinics that provided abortion services and 2) prohibited clinicians from providing referrals to abortion providers, even when directly requested by the patient. By contrast, under HHS’s new 2021 rule, Title X funds can, once again, go to clinics that do not physically separate non-abortion and abortion services, and that provide referrals to abortion providers at a patient’s request. The coalition’s brief argues for the court to reject a request by a group of plaintiff states for a preliminary injunction of the 2021 rule.
Attorney General Herring and his colleagues argue that the plaintiffs’ proposed injunction would put patients and providers in harm’s way by returning to the 2019 Trump Administration rule, which caused dramatic loss of Title X providers and a substantial decrease in patient visits and health care services provided. Underserved communities were especially impacted by the loss of essential care, particularly low-income individuals, minorities, LGBTQ+ individuals, individuals living with disabilities, minors, and those living in rural areas.
The 2021 HHS rule allows lost providers to reenter the Title X program and improves client outcomes by providing greater access to and a wider range of health care services and promotes health equity by emphasizing efforts to reach underserved communities.
Attorney General Herring and his colleagues have fought hard to protect Title X funding. In March 2019, Attorney General Herring sued the Trump Administration challenging the constitutionality of its Title X “Gag Rule” that restricted healthcare providers that receive certain federal funds from counseling or making referrals for abortion. After the U.S. Court of Appeals for the Ninth Circuit upheld the new “gag rule”, Attorney General Herring filed a petition that asked the U.S. Supreme Court to hear the case. Separately, Attorney General Herring filed an amicus brief in a different lawsuit brought by the city of Baltimore against the Trump Administration’s Title X rule. The U.S. Court of Appeals for the Fourth Circuit struck down the rule – enjoining it in Maryland while it remained in place across the rest of the nation – after which the Trump Administration filed its own petition asking the Supreme Court to hear the case. In March 2021, the coalitions in both cases joined with the Biden-Harris Administration to ask the Supreme Court to dismiss both cases, while the Biden-Harris Administration acted to rescind and replace the rule. In May 2021, the Supreme Court entered the order to dismiss both cases and denied efforts by additional parties to step in and defend the gag rule. At the same time, Attorney General Herring sent a comment letter to HHS applauding the agency’s proposed rule to undo the harmful, Trump-era Title X “gag rule.”
Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia.
Governor Northam celebrates major advances to clean Chesapeake Bay
Governor Ralph Northam announced on November 30, 2021, the completion of the largest oyster restoration project in the country, in Virginia’s Piankatank and the Great Wicomico rivers. Oysters are a critical natural component of Virginia’s work to clean the Chesapeake Bay, as one oyster can filter up to 50 gallons of water a day. The Bay is the largest estuary in the United States with a watershed that encompasses six states that are home to more than 18 million people.
Thanks to investments made under Governor Northam, Virginia now provides more funding for the Bay than under any previous Governor, investing more than $756 million in funding to help farmers, localities, and wastewater treatment operations reduce pollution from nutrients and sediment.
Virginia has been working to restore the native oyster populations in the Chesapeake Bay with one of the largest and most elaborate plans in the nation. Virginia has fully restored four tributaries: the Lafayette, the Eastern branch of the Elizabeth, the Piankatank, and the Great Wicomico. Oyster populations are restored by constructing new reefs and planting young oysters to create new ecosystems.
“As someone who grew up on the Chesapeake Bay, I could not be more proud of the progress Virginia has made,” said Governor Northam. “This administration has invested $10 million for oyster restoration during the past four years. Several years ago, Virginia joined other states on the Chesapeake Bay watershed and agreed to conduct a series of clean-up measures by a deadline of 2025. Today’s announcement is a major step in achieving the goals in the Chesapeake Bay Watershed Agreement. The investments we make in our natural resources—and our environmental stewardship—are paying off.”
Over the past two years, the Virginia Marine Resources Commission deployed more than 50,000 tons of rock and nearly 100,000 bushels of shell to restore 127 acres of oyster habitat in the Piankatank. The Virginia Marine Resources Commission also deployed more than 12,000 tons of rock and 14,000 bushels of shell to restore 24 acres of oyster habitat in the Great Wicomico River.
The Virginia Marine Resources Commission set a record this year with 100 acres for the most oyster reef acres restored in a single year. The Piankatank River oyster restoration effort is the largest restoration project that has been completed in the country.
“We can all be grateful for Governor Northam’s historic investment in oyster restoration efforts across the Chesapeake Bay,” said Secretary of Natural and Historic Resources Ann Jennings. “Thanks to his leadership and committed partners, our goal to restore native oyster habitat in the Bay is a reality. This success also stems from a diligent, science-based plan and a coalition of dedicated partners. The continuing improvement in water quality and an increasing number of oysters in these rivers shows what we can do when we all work together as partners.”
The Commonwealth worked collaboratively on oyster restoration with federal, non-profit, and shellfish industry partners including the Chesapeake Bay Foundation, the Elizabeth River Project, Lynnhaven River Now, the National Oceanic and Atmospheric Administration, the Nature Conservancy, U.S. Army Corps of Engineers, Virginia Commonwealth University, the Virginia Institute of Marine Science, and W.E. Kellum Seafood.
“These restored rivers will provide hundreds of acres of habitat for not just oysters but various other commercially and recreationally important fish and wildlife that depend on a thriving Chesapeake Bay including Virginia’s striped bass and blue crabs,” said Virginia Marine Resources Commissioner Steve Bowman. “What we have been able to accomplish will benefit Virginia for future generations to come.”
“The success of the Piankatank River oyster restoration project is a great testament to the positive benefits of environmental interest, Commonwealth of Virginia, and Federal partners working side by side with the Virginia oyster industry to enhance the sustainability of the oyster resource,” said Kellum Seafood Vice President Tommy Kellum. “The Virginia oyster industry is very proud to have been a part of this important effort.”
“Oysters are a keystone species in the Bay,” said Chesapeake Bay Foundation Virginia Executive Director Peggy Sanner. “Restoring oysters in Virginia’s rivers is an investment in clean water and healthy fisheries that will benefit our children and future generations. This dramatic progress is an important example of what can be achieved with successful partnerships among local, state, and federal agencies and other stakeholders. We are grateful for the leadership of Governor Northam and for the General Assembly’s long-standing bipartisan commitment to the Chesapeake Bay, which has made the success of oyster restoration on these rivers possible.”
“The Nature Conservancy engages in shellfish restoration around the world,” said The Nature Conservancy State Director Locke Ogens. “From Australia to Europe, our global shellfish restoration colleagues and partners look to the Chesapeake Bay as the model for how to get the large-scale restoration done, and done right.”
This milestone marks the third and fourth Chesapeake Bay tributaries in Virginia to reach the goal for full restoration of the oyster habitat as part of the 2014 Chesapeake Bay Watershed Agreement. Under the agreement, Virginia committed to restoring five tributaries. Recently Governor Northam added a sixth Bay tributary, the Eastern Branch of the Elizabeth, so Virginia will exceed its restoration agreement.
Governor Northam’s term has also seen improvements in striped bass numbers through tough limits on recreational and commercial fishing and a shift in the management of menhaden to the state’s fishery experts. In addition, Governor Northam’s leadership has ensured that climate change will be taken into consideration by the Virginia Marine Resources Commission’s Tidal Wetlands Protection Program and that living shorelines are now mandated as the preferred shoreline protection method.
Governor Northam is the chair of the Chesapeake Bay Executive Council. The Council will meet next on December 15.
Herring argues that Congress intended sentencing reform legislation to correct prior injustices, improve public safety, and save taxpayer money
RICHMOND (November 23, 2021) – Attorney General Mark R. Herring has joined a coalition of 17 attorneys general in urging the Supreme Court not to restrict the resentencing relief that individuals serving harsh sentences can seek under the First Step Act, landmark criminal justice reform legislation passed by Congress in 2018.
Attorney General Herring and his colleagues filed an amicus brief in Concepcion v. United States, a case concerning what information a court may consider when deciding whether to reduce a harsh sentence for a prior crack cocaine offense under the First Step Act. Specifically, the coalition argues that courts should be able to consider intervening changes to the law since the original sentence was imposed, and intervening changes in a defendant’s factual circumstances, such as good behavior in prison or evidence of rehabilitation. The coalition points to a universal consensus that the former federal sentencing regime, which disproportionately punished crack cocaine offenders over powder cocaine offenders, was unjust and had a disproportionate impact on communities of color. The brief also explains how state-level sentencing reforms analogous to the First Step Act have improved public safety and saved billions of dollars and contends that limiting the scope of the First Step Act would deprive both states and the federal government of similar benefits.
“The passage of the First Step Act helped to create a more fair, just, and equal criminal justice system in this country, and we must ensure that those reforms remain in place,” said Attorney General Herring. “When resentencing eligible Americans under the Act, it’s so important for courts to be able to consider intervening changes in the law or in the individual’s factual circumstances to make the most accurate and fair decision. My top priority will always be to ensure justice, equality, and opportunity in Commonwealth and around the country.”
In the 1980s, states and the federal government responded to the prevalence of crack cocaine and public panic about its supposedly unique dangers with aggressive penalties and targeted criminalization. Federal sentencing laws treated crack cocaine much more harshly than powder cocaine, with 100 times as much powder cocaine as crack cocaine needed to trigger the same penalties.
Harsh penalties for crack cocaine exacerbated racial inequality in the justice system. Historically approximately 60 percent of crack users in a given year have been white, but the majority of people sentenced for crack cocaine offenses have been Black or Hispanic. For example, in 2006, around 80% of those convicted of crack offenses were Black. In part because of dramatically harsher treatment of crack cocaine offenses, the average prison time for Black people convicted of drug offenses increased by more than 77% from 1994 to 2003, compared to an increase of less than 33% for white people convicted of drug offenses.
In 2010, Congress passed the Fair Sentencing Act to reduce the disparity between sentences for crack cocaine and powder cocaine. The First Step Act, a bipartisan criminal justice reform bill passed in 2018, included a provision that made the Fair Sentencing Act’s reforms retroactive, allowing those serving harsh sentences imposed under the former federal law to seek relief.
In their amicus brief filed in Concepcion v. United States, the attorneys general urge the Supreme Court to reverse a lower court’s decision dramatically limiting what courts may consider when resentencing otherwise eligible individuals under the First Step Act. Relying on their historical experience addressing the crack cocaine crisis and their unique authority as the primary enforcers of criminal law, the states argue that during First Step Act resentencing, courts should be allowed to consider intervening changes in the law and facts because:
There is consensus that applying dramatically harsher sentences for crack cocaine offenses over powder cocaine offenses was unnecessary and unjust: When Congress was drafting the First Step Act, states had uniformly concluded that the extreme differential between sentences for crack cocaine and powder cocaine was both unwarranted and unwise. Assumptions about crack cocaine’s unique danger and addictiveness—which informed the original decisions to impose harsher sentences—have been discredited, and there is now widespread consensus that crack cocaine and powder cocaine have similar effects.
Sentencing reform has been shown to improve public safety and save tax dollars: States have experimented with sentencing reforms and reduced sentences for drug-related offenses for decades and have seen these reforms improve public safety, strengthen communities, and decrease recidivism. These reforms have also saved states billions of dollars. Congress passed the First Step Act to realize these benefits at the federal level, and the Act should be interpreted in a manner consistent with that aim.
The First Step Act was intended to right historic wrongs: Congress passed the First Step Act in part to correct fundamental injustices in federal cocaine sentencing laws and address the severe racial disparities created by the prior sentencing regime. Sentencing reform is a powerful tool to help correct the extreme over-incarceration of racial minorities for drug-related crimes and promote racial justice. So far, 96% of those granted sentence reductions under the First Step Act have been Black or Hispanic. It would make little sense to require courts to limit the factors they consider in resentencing and apply old rules no longer on the books—including rules rejected by Congress, the courts, and the Sentencing Commission—when Congress passed the First Step Act specifically to correct the unjust and racially disparate sentences brought on by the old regime.
Joining Attorney General Herring in filing the amicus brief are the attorneys general from Colorado, Colorado, Guam, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Vermont, Washington, and the District of Columbia.
Virginia State Police urging motorists to be patient and put safety first this Thanksgiving
For many Virginians, Thanksgiving is time to gather with friends and family, commiserate over the trials and tribulations of the previous year and to be truly thankful for blessings around us. These wonderful family moments often start with loading up the car and heading down the road. AAA predicts that 1.4 million Virginians will be traveling for the holiday, which is 11% more motorists than in 2020. With many of those travelers taking to the roadways, patience might be the most important thing to pack.
“With traffic on the roads increasing and many people anxious to get to their destination, I encourage all Virginians to be patient. Buckle up and take your time,” said Colonel Gary T. Settle, Virginia State Police Superintendent. “Your family wants you to arrive safely and in a frame of mind to enjoy all the holiday has to offer. Making sure you are driving the posted speed limit, driving for conditions and wearing your seatbelt are the best ways to stay safe on the road, so you can enjoy the holiday.”
To further prevent traffic deaths and injuries during the Thanksgiving holiday, the Virginia State Police will once again be participating in Operation C.A.R.E. – Crash Awareness and Reduction Effort. As part of the state-sponsored, national program, state police will be increasing its visibility and traffic enforcement efforts during the five-day statistical counting period that begins at 12:01 a.m. on Wednesday, Nov. 24, 2021, and concludes at midnight Sunday, Nov. 28, 2021.
The 2020 Thanksgiving Operation C.A.R.E. initiative resulted in troopers citing 4,930 speeders and 1,706 reckless drivers statewide. Virginia troopers charged 67 drivers for driving under the influence (DUI) of alcohol and/or drugs, and cited 498 drivers for failing to buckle up themselves and/or juvenile passengers.
There were 12 traffic fatalities during the 2020 five-day Thanksgiving statistical counting period and eight traffic fatalities during the same period in 2019.
This year, the Thanksgiving Holiday C.A.R.E. initiative falls within the annual “Click It or Ticket” campaign. This helps to further emphasize the lifesaving value of seat belts for every person in a vehicle.
With increased patrols, Virginia State Police also reminds drivers of Virginia’s “Move Over” law, which requires motorists to move over when approaching an emergency vehicle stopped alongside the road. If unable to move over, drivers are required to cautiously pass the emergency vehicle. The law also applies to workers in vehicles equipped with amber lights.
Port moves ahead with rail capacity expansion at NIT as board approves $61M construction bid
The Port of Virginia® is embarking on an expansion of its double-stack, on-dock rail operation that when complete will allow the port to handle 1.1 million containers a year via rail.
The process of doubling the size of the Central Rail Yard at Norfolk International Terminals moved ahead Tuesday when the Virginia Port Authority (VPA) Board of Commissioners unanimously approved the project’s $61.5 million construction bid. The work will be done by Allan Myers Virginia Inc., the same company that handled the optimization projects at NIT and Virginia International Gateway (VIG).
Additionally, the VPA board approved moving forward on an $18 million contract with Konecranes for up to three cantilever rail-mounted gantry cranes and their support systems.
When complete, NIT’s Central Rail Yard will be able to accommodate 610,000 annual container lifts; current lift capacity is 350,000 at NIT and 480,000 at VIG. The construction encompasses demolition, pavement work, utilities infrastructure and installation of new railroad track. The work begins in February 2022 and will be complete in late 2023.
The completion of the rail expansion project is timed to support opening of the port’s deeper and wider commercial ship channel. The dredge work to take Virginia’s channel depth to 55 feet is underway and scheduled for completion in mid-to-late 2024 – the wider channel will make way for safe, two-way traffic of ultra-large container vessels.
“In a little more than two years The Port of Virginia will be served by the deepest and widest ship channel anywhere on the US East Coast,” said Stephen A. Edwards, CEO and executive director of the VPA. “Pairing that channel depth with modern terminals and significant rail capacity is going to attract big ships and more cargo volume. We are going to need the rail capacity to support the additional cargo we’ll be getting from this shift of big vessels to Virginia.”
The project will also support further optimization of NIT as the port begins its preliminary planning for expanding the container capacity at the terminal’s North Berth. That project, when complete, will create the throughput capacity to handle 630,000 containers annually. The design work is scheduled for completion by the end of 2022 with construction to begin in the spring of 2023.
“We have a clear roadmap for investment to stay ahead of the curve,” Edwards said. “These projects will help meet the needs of our customers and the cargo owners while giving us the capacity and capability to be the premiere US East Coast destination for rail cargo and big ships.”
Virginia State Police trooper selected for IACP Leadership in Looking Beyond the License Plate award
The Virginia State Police (VSP) is proud to announce the selection of Virginia State Police Trooper Jonathan R. Davis as the recipient of the International Association of Chiefs of Police (IACP) 2021 Leadership in Looking Beyond the License Plate Award. Trooper Davis, who is assigned to the Area 22 Office in the VSP Appomattox Division, was recently presented his award by Colonel Gary T. Settle at the VSP Superintendent Awards Ceremony in North Chesterfield County.
“The Virginia State Police is extremely proud of Trooper Davis for being the only law enforcement officer in the nation to be selected for this esteemed recognition,” said Colonel Gary T. Settle, Virginia State Police Superintendent. “Trooper Davis’s extraordinary efforts not only disrupted a major credit card theft operation, but also prevented countless, innocent people from being victimized by these suspects. Virginia, and especially Mecklenburg and Lunenburg counties, are fortunate to have Trooper Davis on patrol and protecting their communities.”
The IACP award announcement described the investigation as follows: Trooper Davis has pursued a path of valor, service, and leadership. Trooper Davis’s traffic stop on a minivan and the legal search of the vehicle ultimately uncovered a credit card theft ring that was operated by two foreign nationals residing in New York. The search of the vehicle yielded the discovery of a large bag containing a credit card skimmer, 14 debit/gift cards, and $140,000 in US currency. Trooper Davis proactively contacted the United States Department of Homeland Security (DHS) to determine if the agency had any intel or interest in these two individuals. An agent was dispatched to respond to the scene. The DHS agent ran all the cards through a mobile scanning device and determined that seven of the cards had been rewritten with stolen credit card identifications. Trooper Davis also contacted the VSP High-Tech Crimes Division for analysis of cell phones and other electronics seized from the vehicle to bolster his case and assist the federal agents with their investigation. Trooper Davis pursued state charges while a grand jury indicted both individuals on more than six felony charges.
The traffic stop took place April 23, 2020 along the southbound lanes of Interstate 85 near South Hill, Va. The purpose for the traffic stop was initially for a speeding violation of 84 mph in a posted 70 mph zone. Upon his approach of the vehicle, Trooper Davis observed a homemade, paper license plate taped to the upper left hand corner of the rear window. The license plate information and title the driver presented to him did not match nor were valid, which led Trooper Davis to further investigate and uncover the illegal credit card theft and skimming operation.
The IACP Leadership in Looking Beyond the License Plate Award recognizes the dedication and initiative of individual police officers whose daily efforts during traffic stops play a large part in preventing additional, more severe crimes. This award is designed to substantiate and document the importance of license plates as law enforcement tools and recognize officers who use license plates to prevent and detect both civil traffic violations and further criminal conduct.
Trooper Davis, 32, joined the Virginia State Police in July 2018 as a member of the 129th Basic Session Academy Class. He has been assigned to Area 22, which encompasses South Hill and the counties of Mecklenburg and Lunenburg, since graduating from the academy.