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Bill advances to remove statue of segregationist

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A Virginia House of Delegates committee voted Friday to advance a bill to remove the statue of former state Gov. Harry F. Byrd Sr. from Capitol Square.

House Bill 2208, introduced by Del. Jay Jones, D-Norfolk, instructs the Department of General Services to place the statue in storage until its final location is chosen by the General Assembly.

“This statue serves only as a reminder to the overt and institutional racism that has and continues to plague our commonwealth,” Jones said.

The bill’s supporters included Rita Davis, counsel to Gov. Ralph Northam, who described Byrd’s work as preventing African Americans from voting, being seen or being heard.

“Had Mr. Byrd had his way, I would never have the opportunity to be before you, because I’m Black,” Davis said during the committee hearing. “The question is not whether we should remove Mr. Byrd’s statue from Capitol Square, but rather ‘Why on earth would we keep it at Capitol Square?’”

 Speaker of the House Del. Eileen Filler-Corn, D-Springfield, indicated during the hearing that the League of Women Voters also supported the bill.

The five Republicans serving on the committee voted against the measure.

Byrd, a Democrat, served as Virginia’s governor from 1926 to 1930 and as a U.S. senator from 1933 to 1965. He strongly opposed desegregation of public schools and led a “massive resistance” campaign in the South against the ruling of Brown v. Board of Education, according to documents from Old Dominion University’s Desegregation of Virginia Education collection. His statue was erected in Richmond’s Capitol Square in 1976 after his death in 1966.

Debate around the statue’s removal began last session, when Del. Wendell Walker, R-Lynchburg, introduced a bill to remove it, though the bill was ultimately stricken from the docket. The General Assembly passed legislation last year allowing local governments to remove Confederate monuments. The removal of statues in Richmond was accelerated following protests after George Floyd died in the custody of a Minneappolis police officer who has since been charged with second-degree murder.

The Department of General Services estimates the removal to cost approximately $250,000, according to the bill’s impact statement. Storage costs are estimated at $7,000 per year until the final home of the statue is determined.

The Rules Committee passed the measure on a 13-5 vote. The bill now heads to the House floor for consideration.

By Zachary Klosko
Capital News Service

Capital News Service is a program of Virginia Commonwealth University’s Robertson School of Media and Culture. Students in the program provide state government coverage for a variety of media outlets in Virginia.

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Virginia lawmakers ban gay panic defense in Virginia

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Virginia lawmakers passed a bill that will ban the use of a person’s perceived or actual sexual orientation or gender identity as a defense in court for the assault or murder of an LGBTQ person.

“It’s done: We’re banning the gay/trans panic defense in Virginia,” Del. Danica Roem, D-Manassas, said in a Twitter post.

Del. Danica Roem, D-Manassas

Roem introduced House Bill 2132, which passed the Senate 23-15 on Thursday with an amendment. The House approved the amendment in a 58-39 vote. The bill now heads to Gov. Ralph Northam’s desk for a signature.

The Senate amendment adds oral solicitation or hitting on someone, as an unacceptable justification for the gay or transgender panic defense.

The panic defense has historically been used in cases where a member of the LGBTQ community was attacked because of their actual or perceived sexual orientation or gender identity. Defendants use the panic defense to justify “heat of passion” murders or assaults.

“This [bill] means someone’s mere existence as an LGBTQ person does not excuse someone else and does not constitute a reason of provocation to commit such a heat of passion attack,” Roem said.

The statute does not dismiss traditional self-defense lawsuits. This means LGBTQ people can still be prosecuted for attacking someone.

There have been at least eight instances in Virginia where the panic defense was used, with the last case in 2011, according to Carsten Andresen, a researcher and criminal justice professor from Austin, Texas. He said he has tracked 200 homicide cases nationally where the panic defense was attempted. Andresen reached out to Roem in support of the bill.

His research included five murders and three assaults in Virginia between 1973 and 2011 that Andresen said used the panic defense to justify or excuse a defendant’s violent actions. Mark Hayes murdered Tracie Gainer, a transgender woman, in 2002. Hayes claimed he “lost it” and murdered Gainer when he realized she was a man after engaging in sexual intercourse. In 2011, Deandre Moore, age 18, pleaded guilty to killing 20-year-old Jacques Cowell by stabbing him multiple times. Cowell was openly gay and there were witness accounts that the two had a physical relationship. Moore received a 40-year prison sentence, with 15 years suspended.

“In these cases, criminal defense attorneys used gay and trans panic defense to put the victim (rather than the offender) on trial,” Andresen wrote in support of the bill. He said the use of the panic defense “suggests that it is permissible to commit violence” against LGBTQ people.

Sen. Joseph Morrissey, D-Richmond, spoke in opposition of the bill, saying lawmakers should not pass laws that prohibit defendants from making a defense and that lawmakers would be going “down a very slippery slope.” Morrissey said any defendant who would offer the panic defense “would of course be rejected.”

Sen. Jennifer McClellan, D-Richmond, said this is not the first time Virginia has expressly prohibited a defense. Legislators repealed in 2008 the code section that provided defense from carnal knowledge when a defendant marries a child 14 years or older.

“When we have found an affirmative defense to be abhorrent to public policy we have gotten rid of it,” McClellan said.

McClellan said she wished she could agree with Morrissey that no judge would accept the panic defense, but referred back to the Virginia cases where it was used successfully.

“We know the bill is constitutional, we know also, the bill has existing precedence, which is why it has earned overwhelming bipartisan support in statehouses across the country,” Roem said.

The American Bar Association in 2013 recommended that local, state, and federal legislatures curtail the availability and effectiveness of the gay and transgender panic defense. Roem said that similar bills have been implemented in other state legislatures. Virginia will become the 12th state to ban the panic defense, according to the policy organization Movement Advancement Project.

The defense is also banned in the District of Columbia.

There are currently 39 states that allow the panic defense to be used in cases where hate crimes resulted in the assault or murder of an LGBTQ individual. This typically results in a murder charge being lessened to a charge of manslaughter or acquittal.

Roem said she worked with Wes Bizzell, president of the National LGBT Bar Association, to prepare the bill. She also thanked Judy Shephard, the mother of Matthew Shephard, for speaking in support of the bill in committee.

Matthew Shephard, a gay man, was murdered in 1998 in Laramie, Wyoming. The judge barred Aaron McKinney’s defense lawyer from using the gay panic defense in the murder trial. McKinney said Shepard’s advances triggered memories of sexual abuse he suffered as a child. Police said the crime was motivated by robbery, but Shepard’s sexual orientation likely made him the target.

There were four people involved in the brutal crime. Two were found guilty of murder and two were charged with being an accessory after the fact to first-degree murder.

Roem was in high school when Matthew Shephard was murdered. She said the case had a profound effect on her and prevented her from coming out due to a fear of being ostracized and attacked.
“It was requested to me by one of my Manassas Park student constituents who’s out, hoping not to have to live in the same fear in 2021 that I did in 1998,” Roem said of the bill.

Roem said there are people who don’t believe hate crimes such as the one against Shephard happen today in Virginia. She affirmed that they do happen, and she believes it is time to do something about it.

“We have to look at this from the perspective of ‘what do we do to make an affirmative statement that LGBTQ lives matter and that you can’t just kill us for existing,” Roem said.

By Cierra Parks
Capital News Service

Capital News Service is a program of Virginia Commonwealth University’s Robertson School of Media and Culture. Students in the program provide state government coverage for a variety of media outlets in Virginia.

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Governor Northam introduces first-ever statewide strategic plan to advance diversity, equity, and inclusion

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On February 26, 2021, Governor Ralph Northam unveiled ONE Virginia, a first-in-the-nation statewide strategic plan to advance visible diversity, equity, and inclusion across state government.

“To truly move forward as a Commonwealth, we must prioritize diversity, equity, and inclusion as our collective goals,” said Governor Northam. “The ONE Virginia Plan is a strategic blueprint to institutionalize equity across state government and effectively address deeply-rooted structural and systemic barriers to access and opportunity. This roadmap will ensure our efforts are accompanied by accountability, measurable results, and sustained impact, and help make Virginia the best place to live, work, visit, and thrive.”

In September 2019, Governor Northam appointed Dr. Janice Underwood to serve as Virginia’s first cabinet-level Chief Diversity Officer. The Office of Diversity, Equity, and Inclusion (ODEI) have worked collaboratively with public and private stakeholders to develop the ONE Virginia Plan—a sustainable framework to operationalize equity and promote inclusive practices across Virginia with a focus on reducing inequities.

“Diversity, equity, and inclusion are more than a moral imperative or a legal mandate—they are key to achieving organizational excellence,” said Dr. Underwood. “Together we are charting a new path for our Commonwealth, one that values our diverse people as our greatest strength. Using the Inclusive Excellence framework, ONE Virginia will help implement tangible reforms that interrupt long-held systems of structural inequity to create sustainable change, innovation, and productivity across state government, throughout Virginia, and around our country.”

The ONE Virginia Plan will support more than 100 state agencies in the Commonwealth in prioritizing and implementing strategies to provide fair and equitable services and cultivate a valued and high-performing workforce. It will help ensure that people in positions of leadership understand systemic inequity and its effects and work to increase diversity at all levels of government, foster an inclusive and welcoming organizational culture, establish shared accountability for visible equity, and promote community engagement. In the coming months, the ODEI will seek input and suggestions from state employees, external stakeholders, and community leaders to further develop a concrete equity policy.

“It has been an honor to work with Dr. Underwood, alongside an amazing steering committee, to stretch the ONE Virginia model throughout the Commonwealth to build statewide capacity for inclusive excellence,” said Dr. Kevin McDonald, Vice President for Diversity, Equity, Inclusion, and Community Partnerships at the University of Virginia. “I have already engaged the greater Charlottesville area in this important work, and I am excited about its potential for scale across Virginia.”

The ONE Virginia Plan is an unprecedented model for fostering diverse, equitable, and inclusive workplace environments and is being codified by the General Assembly through legislation supported by the Northam Administration. House Bill 1993, sponsored by Delegates Alex Askew and Delores McQuinn, requires state agencies to establish and maintain comprehensive diversity, equity, and inclusion strategic plans in coordination with the Governor’s Chief Diversity Officer.

“The comprehensive emphasis on equity-minded legislation throughout the 2021 General Assembly session has been historic,” said Secretary of Administration Grindly Johnson. “This legislation makes Virginia a national exemplar in fostering the business case for organizational effectiveness in our state agencies.”

This plan was developed in collaboration with the Department of Human Resource Management (DHRM). Together with the ODEI, DHRM and an interdisciplinary volunteer executive steering team created an online toolkit for use by state agencies and other stakeholders to facilitate the implementation of individualized strategic plans that advance diversity and inclusive excellence. The next phase of the ONE Virginia Plan will focus on working with an initial cohort of 10 state agencies that provide direct support to the public during the COVID-19 pandemic to create agency-based strategic diversity and inclusion plans modeled after the statewide framework.

“The critical work of state government depends upon our ability to attract and retain a talented workforce that reflects the diversity of the Virginians we serve,” said DHRM Director Emily Elliott. “We charge all agency leaders to adopt the ONE Virginia Plan and subsequent Principles of Community to create an engaged workforce that leverages diversity as a strength, supports an inclusive work environment, and works in pursuit of policies and practices that hold each agency accountable for expanded access, success, and overall inclusive excellence.”

The ONE Virginia Plan and the online toolkit are available here. For more information about the Office of Diversity, Equity, and Inclusion and its work, please visit governor.virginia.gov/diversity.

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AG Herring continues fight to block 3D-printed guns

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RICHMOND (February 25, 2021) – Attorney General Mark R. Herring has joined a coalition of 21 attorneys general in fighting a lawsuit that seeks to stop states from enforcing their laws against a company disseminating dangerous 3D-printed gun files on the internet. In an amicus brief filed in Grewal v. Defense Distributed before the U.S. Supreme Court, Attorney General Herring and his colleagues seek to protect states’ efforts to stop Defense Distributed from unlawfully publishing easily-downloadable files on the internet that provide the instructions to build dangerous 3D-printed firearms, including assault weapons. These files would allow plug-and-play access to 3D-print unregistered, untraceable firearms that can also be very difficult to detect, even with a metal detector.

“3D-printed guns are incredibly dangerous and can sometimes even be virtually impossible to detect,” said Attorney General Herring. “States must have the ability to enforce their own laws, especially when those laws were created in order to protect their communities and keep their citizens safe. The reckless dissemination of these 3D-printed gun files online could mean that these firearms end up in the hands of dangerous individuals and we must do everything we can to make sure that doesn’t happen.”

For years, Defense Distributed has attempted to widely disseminate dangerous internet files that give individuals the ability to manufacture unregistered and untraceable 3D-printed firearms that can be extremely difficult to detect, even with a metal detector. A number of state and local officials sent the company cease and desist letters ordering the company to stop breaking state laws. Defense Distributed then sued the officials in federal court in Texas, but ultimately only pursued its case against New Jersey’s attorney general. After the U.S. Court of Appeals for the Fifth Circuit found that Texas courts had personal jurisdiction over New Jersey’s attorney general, the attorney general petitioned the Supreme Court to take up the case.

In the amicus brief, Attorney General Herring and his colleagues argue that cease and desist letters are critical and cost-effective tools for enforcing state law, and, in the internet age, state and local officials increasingly must direct such cease and desist letters out of state. Because out-of-state entities, like Defense Distributed, operate online and, therefore, operate across state lines, state officials cannot protect their residents from violations of their own state’s laws by such entities without being able to send cease and desist letters out of state.

Additionally, Attorney General Herring and his colleagues argue that the Fifth Circuit failed to account for critical state-sovereignty and federalism considerations when it found that the Texas courts had personal jurisdiction over New Jersey — in violation of longstanding Supreme Court precedent set out in cases, such as World-Wide Volkswagen Corp. v. Woodson. Specifically, the federalism principles underpinning that precedent do not permit the recipient of a cease and desist letter from an out-of-state official to sue the official in the recipient’s home state when the letter was sent from the official’s home state, and the official is simply enforcing his or her own state’s laws as applied to the recipient’s activities in the official’s home state. The coalition makes clear that permitting suits in such circumstances — as the Fifth Circuit did here — forces a state official to risk burdensome and expensive lawsuits in a foreign forum as the cost of protecting state residents from an entity that is reaching into the official’s state and violating that state’s laws. Putting a state official to that choice undermines state sovereignty and harms the public interests of the official’s state by chilling legitimate law-enforcement efforts or else dramatically increasing the costs of those efforts, including by encouraging premature lawsuits against states in courts that lack expertise and a stake in the relevant state’s law.

Attorney General Herring and his colleagues are asking the Supreme Court to review the Fifth Circuit’s decision, and ultimately to order the dismissal of Defense Distributed’s case in Texas for lack of personal jurisdiction.

In January 2020, Attorney General Herring filed a lawsuit challenging the Trump Administration’s efforts to allow 3D-printed gun files to be released on the internet. Previously, Attorney General Herring and his colleagues won a preliminary injunction blocking the Trump Administration’s prior attempt to allow the release of the files.

Additionally, Attorney General Herring supported legislation during this year’s General Assembly session that would make it a class 5 felony for anyone to manufacture, import, sell, transfer, or possess any firearm that’s untraceable, including 3D-printed guns.

Joining Attorney General Herring in filing this amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

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Legislation hopes to expand broadband access for low-income students

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RICHMOND, Va. — The Virginia General Assembly passed legislation in an effort to expand broadband internet access to low-income students across the commonwealth.

Senate Bill 1225, proposed by Sen. Jennifer Boysko, D-Fairfax, authorizes school boards to appropriate funds to partner with private companies for the purpose of implementing and subsidizing broadband internet access for low-income and at-risk students.

“Distance learning during the pandemic has left these students struggling not just with homework but with classwork and lessons as well,” Boysko said before a House panel.

The reduced rate broadband would be eligible for students who qualify for child nutrition programs and other programs that are recognized by the school board as a measure to identify at-risk students. That means programs that are funded by the U.S. Department of Agriculture, such as the schools’ breakfast, lunch, and after-school snack programs.

These broadband programs already exist, but Boysko said the bill clarifies that school boards can enter into partnerships with private broadband companies and permits the companies to promote the service. Boysko said there are nearly 600,000 students who qualify for those supplemental programs, though 215,000 people are currently utilizing them.

One plan offered to qualifying families is $9.95 a month, according to a Comcast representative who spoke in favor of the bill.

Phillip Lovell, vice president for policy development and government relations at the Alliance for Excellent Education said students without access to reliable technology are experiencing the brunt of the pandemics’ drawbacks.

“If you don’t have high-speed home Internet, and if you don’t have a device, then you are in a world of hurt,” Lovell said.

More than 20% of households in Virginia lack high-speed internet, according to a recent analysis by Future Ready Schools, a research project of the Alliance for Excellent Education, a national nonprofit committed to improving education outcomes. This translates to almost 394,000 children without an efficient network to complete their instruction. The same organization reports that over 200,000 students are without internet in households that earn below $50,000 annually. Future Ready Schools also found that 8% of Virginia households have no computer devices. This impacts over 140,000 students.

Lovell said access to a cell phone instead of a computer is an insufficient way of learning. He challenged adversaries to complete work without access to a desktop.
“They should try to write a five-page research paper on any topic they would like … and try to do it on their cell phone,” Lovell said.

Disparities in academic performance can be seen within different races, income levels, English-language proficiency, learning disabilities and sex, according to Education Week, a news organization devoted to education news.

Lower-income students are less likely to have access to a quality remote learning environment; devices that they do not need to share; high-speed broadband internet; and parental supervision during school hours, according to Mckinsey and Co., a consulting firm to governments and organizations.

Rural students are also suffering from a lack of broadband internet access.

Keith Perrigan, president of the Coalition of Small and Rural Schools of Virginia, said during a Fund Our Schools virtual rally earlier in the week that access to broadband internet is perhaps the biggest equity issue faced by the state’s rural students. Fund Our Schools is a coalition of education advocates that work to increase Virginia public schools funding.

“Students are driving 10, 12, 15 miles to get to their nearest Dollar General who will allow them to sit in the parking lot and tap onto the Wi-Fi,” Perrigan said. “And you have students in other parts of the state that sit in their living room and have access to the internet at their disposal all the time.”

Boysko said her bill is not going to solve the problem of rural broadband infrastructure. Other bills will expand access to infrastructure building. She said the bill is primarily for urban and suburban areas where families can’t afford to pay for the internet, but there’s existing broadband infrastructure in place.

Both the House and Senate budget bills propose $50 million per year from the general fund for two years for the Virginia Telecommunications Initiative. The funds will supplement the construction costs of expanding access to areas that are presently unserved by broadband providers. The Department of Housing and Community Development will work with the Broadband Advisory Council to designate unserved areas that require funds.

Boysko also sponsored SB1413 that will make permanent a pilot program that permits some electric utility companies to petition the State Corporation Commission to provide broadband capacity to unserved areas of the state.

By Josephine Walker
Capital News Service

Capital News Service is a program of Virginia Commonwealth University’s Robertson School of Media and Culture. Students in the program provide state government coverage for a variety of media outlets in Virginia.

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Automatic expungement legislation by the General Assembly is now headed to the Governor to be signed into law

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RICHMOND (February 25, 2021) – Attorney General Mark R. Herring issued the below statement following the passage of automatic expungement legislation by the General Assembly that is now headed to the Governor to be signed into law:

“Each of us is more than our worst mistake, and we cannot allow Virginians’ lives to be dictated by one mistake. For too long, Virginia’s laws would not allow someone to move on from a mistake they had made years ago, regardless of how much they had grown, who they’d become, or what they’d done for their community since,” said Attorney General Herring. “With this new ‘clean slate’ legislation, Virginia will now be a place of second chances, and a place where someone can grow, give back to their community, and move on from something they may have done years ago.

“Automatic expungement and clean slate laws are something that I have been pushing for years, and I’m so proud that it is finally happening in the Commonwealth. I want to thank my colleagues in both the House and the Senate, and especially Majority Leader Charniele Herring and Senator Scott Surovell, for being strong partners in helping to pass this important legislation. I look forward to continuing to work with you as we pursue our goals to make Virginia a more fair, equal, and just place.”

For years, Attorney General Herring has advocated for expanding record expungement opportunities and simplifying the process to build a more just and fair criminal justice system and to address the disproportionate burden that criminal convictions place on African Americans and people of color. During last year’s special session on criminal justice reforms, Attorney General Herring again supported the passage of expanding expungement opportunities in the Commonwealth.

Historically, Virginia has been one of the nation’s least forgiving and most restrictive states for individuals who have earned the opportunity to have old convictions and charges expunged from their records. While many other states have some form of a “Clean Slate” law, the Commonwealth appeared to be one of just ten states that do not offer any sort of judicial “record closure” for any adult convictions, nor does it offer any automatic expungement for those who are eligible for expungement. This means that a relatively minor charge or conviction, like marijuana or alcohol possession, can become a permanent stain that limits a Virginian’s job, educational, and housing opportunities.

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Delegate celebrates Senate passage of limited paid leave bill

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After four years and multiple bills, Del. Elizabeth Guzmán, D-Woodbridge, is on the cusp of being able to secure paid leave for some Virginia workers.

“It feels really good,” Guzmán said. “I think about the amount of people who are going to get this benefit and how they will have peace of mind to stay home and take care of family members if they are unwell.”

The Virginia Senate passed an amended version of the delegate’s legislation that mandates paid sick leave for some in-home health care workers. The substitute bill heads back to the House, where the initial bill passed on a 54-46 vote. Guzmán said she will encourage delegates to approve the substitute and send the amended bill to Gov. Ralph Northam.

Guzmán took to Twitter after the Senate’s 21-18 vote to express her excitement.

“Thank you!!” Guzmán wrote on Twitter. “We did it!!”

House Bill 2137 originally offered the benefit to many essential workers, including first responders, retail workers, cleaning workers, teachers, jail and prison employees, and transportation workers.

The bill advanced from the House with an amendment for small businesses; it did not apply to retail businesses with fewer than 25 employees. The Senate later amended the bill to only offer the benefit to in-home health care workers who serve patients with Medicaid coverage.

The substitute still requires employers to set aside one hour of paid leave for every 30 hours worked. Employees must work at least an average of 20 hours per week or 90 hours per month to qualify. Once covered, workers will be allowed paid leave if they are sick or if they need to care for a sick family member. Unused sick leave can be carried over to the year after it was earned.

The amended bill will protect 25,000 workers, according to a press release by Guzmán.
Guzmán says her work is not done.

“I will continue to fight as lieutenant governor, I will continue to fight as a delegate,” Guzmán said. “Whichever role I’m in, I will continue to fight.”

Guzmán is running for lieutenant governor. Among others in the race, she is facing Del. Hala Ayala, another Democrat from Prince William County. If successful, Ayala or Guzmán would become the first Latina to serve in the role.

If signed into law, those covered will begin to accrue paid leave hours on July 1.

By Zachary Klosko
Capital News Service

Capital News Service is a program of Virginia Commonwealth University’s Robertson School of Media and Culture. Students in the program provide state government coverage for a variety of media outlets in Virginia.

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