Virginia Governor’s Veto Exposes Prisoners Who Took Plea Bargains to Civil Rights Violations
by Matt Clarke
On March 20, 2024, Virginia Gov. Glenn Youngkin (R) vetoed SB 334, a bill passed by state lawmakers to prevent prosecutors and courts from requiring criminal defendants to waive their Fourth Amendment rights as a condition of a plea agreement or court order—waivers that can survive completion of their criminal sentences for decades.
Under the U.S. Constitution and Article I, Section 10 of the Virginia Constitution, citizens have a right not to be subjected to unreasonable search and seizure. But for many state prisoners, even after release, “You can be walking down the street, and a uniformed law enforcement officer can stop you, recognize you, and know you have a waiver, and then proceed to just search you without any cause,” according to Rob Poggenklass, Executive Director of the advocacy group Justice Forward Virginia.
That leaves criminal defendants facing an “impossible choice,” according to Lauren Whitley, Chief Public Defender for Fredericksburg, Spotsylvania, King George and Stafford Counties, where the waivers are standard conditions of most plea agreements—which most criminal cases are resolved with, like 95% of those in the U.S.
“It encourages bad policing,” she said. “Fourth Amendment waivers give [police] free reign to do whatever they want. So there is no consequence for them acting inappropriately or unprofessionally.”
Police even stop and search people without knowing whether they have a waiver; if the search turns up contraband, they can consult a database to see if a waiver is on file. That’s where racial disparities usually appear. In the state capital of Richmond, for instance, 53% of residents are Black or Hispanic. Yet 98% of Richmond’s plea waivers were signed by people of color, and Richmond police stop Blacks at five times the rate they stop Whites. In Lynchburg, the state’s 12th-largest city, Blacks account for 28% of the population but 78% of plea waivers. Knowing that many people of color have signed waivers could work into police officers’ calculation of whom to stop and search with flimsy cause.
Driving lawmakers’ move to ban such orders and plea bargain conditions was not only racial disparity in their use—and extreme cases where defendants were required to sign away their rights for decades after their sentences expired—but also the fact that some Virginia prosecutors make the waiver a mandatory condition of all plea bargains; defendants who refuse to go along then face potentially longer sentences after a trial.
It is also a standard condition of parole that gives permission for a parole officer to search a parolee’s person and residence for potential violations, such as possession of drugs or weapons. But Fourth Amendment waivers go far beyond that, permitting stops and searches by any law enforcement officer no matter how unreasonable the pretext. The length of waivers can also stretch over decades—even after a criminal sentence has been served.
The bill included exceptions for agreements requiring a waiver as a condition for participating in a specialty docket and for defendants charged with a sexual offense against a victim under 18. But even those exceptions were limited to the period of probation or post-release supervision.
With Youngkin’s veto, waivers will continue to be the norm in Virginia. But a glimmer of hope was shone into the darkness by a state Court of Appeals decision on March 12, 2024, holding that such waivers do not extend to body cavity searches. See: Hubbard v. Commonwealth, 80 Va. App. 384 (2024).
Additional source: Bolts Magazine