by Dick Hall-Sizemore

Hans Bader has published an extensive article in BR opposing bills introduced in the General Assembly that would enable judges to give a “Second Look” at inmates with long sentences. As I was preparing my comments to the article, they themselves became so extensive that I decided an rejoinder article would be more appropriate.

The bill (HB 853 and SB 634) would establish in which an offender in a Virginia state prison could petition the court to take a “Second Look” at his sentence. How long on his sentence an offender would have to serve before filing such petition would depend on the nature of the offense. After consideration of the petition and comments provided by the Commonwealth’s attorney and victims, a judge could reduce the offender’s sentence and even order him released, if the court finds “the petitioner has changed since the time of his original sentencing or … there is good cause to modify his sentence.” In effect, the bill establishes a parole process overseen by the judge who handed down the original sentence.

In setting out his opposition to the legislation, Mr. Bader cites recidivist statistics that he has used in the past. There are several reasons why his statistics are weak:

1. Not applicable to Virginia. He tells us a story about how early releases of offenders led to more crime in Italy. He cites national arrest statistics. He does not cite Virginia recidivist data for a reason: the Commonwealth has the lowest recidivist rate in the nation.

2. Use least reliable measure of recidivism. He cites the percentage of released offenders who were rearrested. Just because someone was rearrested does not mean that he committed the crime for which he was arrested. The measure used by most criminologists to analyze recidivism is the incarceration rate. This includes offenders who were released, arrested for another crime, convicted, and sentenced to state prison. For its recidivism studies, the Dept. of Corrections (DOC) tracks released offenders for three years. For the cohort released from Virginia prisons in 2000, DOC reported that 49.4 percent had been rearrested within that three years, but only 17.6 percent had been convicted of an offense serious enough to be incarcerated in a state prison.

3. Lack context. Mr. Bader cites large rearrest rates but does not tell us the crimes involved. Many offenders are arrested after missing an appointment with their probation officer or missing a treatment appointment. Those arrests could have included charges of public drunkenness, misdemeanor drug possession or use, petty theft, trespassing, etc. Those offenses certainly should not be tolerated, but they certainly do not rise to the level of mayhem envisioned by Mr. Bader. He also fails to identify the scale of the problem he envisions. At some point, nearly all the offenders in Virginia prisons will be released. There are some who have a sentence of life without parole. These are the ones he is focused on. How many are there? He doesn’t tell us, but he weaves a vision of convicted killers being released and wreaking havoc on the community. He does admit that judges are not required to release any offender under the “Second Look” proposal.

To further bolster his argument, he cites think tanks and observers that argue that long sentences deter crime. He links only to the Heritage Foundation and his “observers” turn out to be two police officers who were interviewed by a local TV station. A report published by the National Institute of Justice found that “increasing the severity of punishment does little to deter crime.” The most powerful deterrent is the probability of being caught.

Mr. Bader claims that “inmates released under HB 853 and SB 634 would be free as a bird, with no parole officer to keep tabs on them.” That is not necessarily true. The bills set out actions a judge could take in a Second Look case. One of them is “ii) place the petitioner on probation for such time as the court shall determine.”

Mr. Bader does raise some valid objections to the process a court must go through in considering a Second Look case and the increase in judicial workload that would result from the legislation. It indeed is cumbersome. However, I wonder if he would want to make it easier for judges to consider releasing these offenders.