Finding Justice in the Virginia Declaration of Rights

On June 12, 1776, the Virginia Declaration of Rights was ratified. Written primarily by George Mason, the document outlines the inalienable rights of “life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” After its ratification, the Virginia Declaration of Rights substantially influenced similar documents developed during the founding of the United States, including the Declaration of Independence and the Bill of Rights.

One thing that sets the Virginia Declaration of Rights apart from similar documents, however, is its claim that “no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.” With criminal justice at the forefront of a national policy conversation, Mason’s words reflect the importance of maintaining justice as a basic duty of government. That’s why Vikrant Reddy, senior research fellow at the Charles Koch Institute, recently joined with former Virginia attorney general Ken Cuccinelli, Pat Nolan of the American Conservative Union, and Grover Norquist of Americans for Tax Reform to examine what areas Virginia can address to improve its current justice system.

“First, Virginians should hold the government accountable for keeping us safe and spending our tax dollars wisely.”

For one, while several states are working toward reforming civil asset forfeiture—thus limiting law enforcement’s ability to seize private property—state reforms can often be circumvented through the federal equitable sharing program.

Under equitable sharing, the federal government litigates state forfeiture cases in return for 20 percent of the proceeds, with the remaining funds reserved for states. Those funds often go directly to law enforcement agencies, bypassing the appropriations process and, in some cases, circumventing state requirements limiting how funds acquired through civil asset forfeiture can be used.

Between 2006 and 2015, Virginia seized over $70 million in assets. However, between 2004 and 2014, the state’s agencies also received more than $100 million in payments from the equitable sharing program, leading to Viginia’s “D-” grade in a recent Institute for Justice report. Reddy, Cuccinelli, Nolan, and Norquist write, “As individuals who believe in a limited government, it is deeply troubling that the state can take private property on the mere suspicion that is has been involved in illegal activity and the owner must then prove the property’s innocence to reclaim it.” While Virginia has taken some steps to address this problem, more can be done.

“Second, it is time to address the ballooning cost of incarceration.”

Virginia has also largely abolished parole, meaning people who end up in prisons are spending more time there, with taxpayers footing the bill. But as a public safety solution, incarceration is overly expensive and relatively ineffective, with rising incarceration rates accounting for less than a third of the reduction in crime over the last 25 years. Beyond dollars and cents, though are the collateral consequences of a criminal record that make it difficult for ex-offenders to successfully re-enter society—an idea not lost on Virginia residents. Recent polling conducted by the Charles Koch Institute and Prison Fellowship found that roughly three fourths of the Virginia population believes prisons ought to prioritize rehabilitation and that judges should have more freedom to use alternative forms of punishment for crime.

“Finally, it is important to ensure that the charge and punishment actually fit the crime.”

In Virginia, the threshold for felony larceny is only $200. Comparatively, Texas recently raised its felony larceny threshold from $1,500 to $2,500. In total, between 2001 and 2011, 23 states increased their felony larceny thresholds, with “no impact on overall property crime or larceny rates.” In 19 of those states, total larceny rates fell.

“The consequences of these felony convictions reverberate for years,” argue Reddy, Cuccinelli, Nolan, and Norquist. “A felony conviction frequently makes it much more difficult to find legal employment, making it much harder to pull one’s life back together.” Most impacted by Virginia’s low threshold for felony larceny is the state’s youth population. In 2014, for example, more youths were imprisoned for a primary conviction of larceny than for any other offense.

Two hundred and forty years ago, George Mason and those gathered at the Fifth Virginia Convention understood that the maintenance of justice was essential for society to truly enjoy liberty. And although “crime and punishment are unfortunate but ever-present elements of any society,” note the authors, remembering the Virginia Declaration of Rights, and what it stands for, means “Virginians have an opportunity to hold our government accountable for its actions and spending and to make commonsense changes that deter crime effectively.”

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