by Dick Hall-Sizemore

Before 2020, offenders convicted of felonies and incarcerated in Virginia prisons were eligible for up to 4.5 days credit toward their sentences for every 30 days served.  They did not automatically receive these credits; violation of prison rules or violent behavior could result in a reduction of “earned sentence credits.”

The 2020 General Assembly enacted legislation that expanded these sentence credits for some offenders.  Depending on their behavior and participation in rehabilitation programs, these inmates could earn up to 15 days credit per 30 days served.  The exceptions, the offenders who were not eligible for the expanded sentence credits, were those convicted of any of a long list of violent offenses, including murder, malicious assault, robbery, rape and other sexual offenses, and kidnapping.  The “enhanced earned sentence credits” (EESC) were to be applied retroactively.  The legislation had a delayed effective date, July 1, 2022, to provide the Department of Corrections (VADOC) time to reprogram its sentence calculation programs.

In his attempts to kill the legislation or modify it through budget amendments, Gov. Glenn Youngkin was able to delay the full implementation of the EESC provisions until July 1, 2024.  Attorney General Jason Miyares also attacked the legislation and tried to restrict it through interpretation.  Twice the Virginia Supreme Court  rejected his interpretations.

Miyares has made his opposition to the EESC a major part of his campaign for re-election.  In a guest commentary in Cardinal News in July, he asserted, “because of Virginia’s early release program, 53 Virginians were murdered.”  During the debate between candidates for Attorney General, he upped his claim, declaring, “Seventy Virginians are dead today, dead today, because a felon that was supposed to be behind prison [sic] got out early.” 

Seventy people killed by offenders released earlier than originally intended.  That’s a shocking number; one that could call for reform of EESC.

Except it isn’t true.

Using a list of the offenders, obtained through a FOIA request, who allegedly were released early under EESC and murdered 70 people, Cardinal News conducted an analysis of Miyares’ claims.  It came up with a much different picture and submitted its findings to the Office of the Attorney General (OAG) for comment.  Recently, the OAG released a revised data set that does not support Miyares’ claim.

In the new data set, only 72 of the 78 offenders on the original list had benefited from EESC.  Of those 72, only 13 had been convicted of homicide-related offenses. Of the remaining:

• 18 were rearrested and ultimately convicted of a non-homicide-related offense;
• 10 had charges that ended in a dismissal or nolle prosequi;
• 15 were rearrested but do not have a final disposition; and 
• 16 were rearrested and have a case that is pending.

Even with the 13 who had been convicted of a homicide-related offense, it is not certain that their offenses were committed within the period in which they benefited from EESC. VADOC assigns an “expected release date” to each offender.  That is the date on which the offender is to be released without taking into account any sentence credits.  If a murder occurred after an offender’s expected release date, it does not render the murder less evil or less devastating to the victim’s family, but if does refute Miyares’ contention that the victim is dead “because a felon that was supposed to be behind prison [bars] got out early.”

Shaun Kenney, spokesperson for the OAG, conceded, “The data provided by VADOC does not allow us any deeper insight as to whether these crimes were committed within the period of time where the offender would have taken advantage of early release.”

Not only can the OAG not show that the offenses were committed before the offenders would have been released anyway under the old rules, many of the alleged murders did not happen.  The reporters of Cardinal News contacted the Commonwealth’s attorneys in those jurisdictions in which an offender released early allegedly killed someone.  Here is a sample of the replies:

Roanoke—offender listed by OAG as arrested for manslaughter was convicted of eluding police and hit and run charges.  He was sentenced to 18 months in prison.  Said the prosecutor, “We can’t find a record of a manslaughter charge. We did not prosecute him for manslaughter.”

Smyth County—offender convicted of malicious wounding.  Said the Commonwealth’s attorney, “In this particular case there was never a dead body, so there was never murder.”

Lynchburg—offender listed by OAG as convicted of aggravated murder.  As clarified by the Commonwealth’s attorney, “He did not kill anyone, he was charged with attempted aggravated murder.”

Henry County—offender listed by OAG as having committed murder actually “stole a tractor and rammed into a police cruiser during a pursuit and pushed the cruiser about 100 yards, nearly toppling it over an embankment.”    The Commonwealth’s attorney commented, ““[He] did not kill anybody, but he clearly engaged in beyond violent behavior.”

Virginia Beach—an offender was listed in the OAG data set as having committed aggravated murder.  Actually, he allegedly shot at a police officer and a staff member of the Commonwealth’s attorney said, “Nobody died in this incident.” 

In light of this analysis, Miyares was asked if he wished to “redefine his claim that 53 or 70 Virginians have died because of enhanced earned sentence credits.”  He declined, saying that one was too many.

To put these numbers in perspective, Miyares’ office says that more than 16,000 offenders have been released early from Department of Corrections custody under the enhanced earned credits program between fiscal year 2023 and 2024.

The Cardinal News article upon which this account was based can be found here.

My Soapbox

This is a fine example of good old fashioned “shoe leather” journalism.  Unwilling to accept at face value information provided them by the OAG, Cardinal News staff asked for more details. When they were stonewalled on that request, they began to dig for themselves.  They consulted state databases and dug through local court records.  There they found what most researchers have found—confusion, inconsistencies, and missing information.  The staff “spent weeks tracking down every name on the list in statewide and local court information systems.”  Then they talked to prosecutors and defense attorneys.  The result was an analysis that led to the OAG putting out a report that significantly undermines one of the Attorney General’s principal campaign messages.