Jason Miyares–Judicial Activist?

Jason Miyares

by Dick Hall-Sizemore

Jason Miyares has struck out again.

Miyares, Virginia’s Attorney General, keeps asking the Virginia Supreme Court  to interpret a statute, based not on how it is actually written, but based on what the General Assembly “intended.” The court’s response is that its function is to ask “not what the legislature intended to enact, but what is the meaning of that which it did enact. We must determine the legislative intent by what the statute says and not by what we think it should have said.”

At issue is the expansion of earned sentence credits for offenders in state prisons enacted by the 2020 General Assembly. This legislation and its implementation has had a convoluted history, which I described in an earlier post. In summary, the maximum number of sentence credits an offender can earn was increased from 4.5 days per 30 days served to 15 days per 30 days served. The legislation listed a large number of exceptions to the expansion. Among the offenses exempted from the expansion were Class 1 felonies (capital murder) and “any violation” of Sec. 18.1-32 (first degree murder).

The aspect of the legislation that Miyares keeps running up against is the omission of inchoate offenses in the list of exceptions. In legal terms, an inchoate crime is “a type of crime that is committed by taking a punishable step towards the commission of another crime. The three basic inchoate offenses are attempt, solicitation, and conspiracy.”

The first case reaching the Supreme Court of Virginia on this issue was Prease v. Clarke. Prease had been convicted of attempted murder of police officers. Prease petitioned the Supreme Court for release under the enhanced earned sentence credits legislation. Miyares opposed the petition, arguing that the term “any violation” of the murder statute encompassed the completed offense as well as inchoate offense. The Supreme Court disagreed. It pointed out that attempted murder was a Class 2 felony, not a Class 1 felony, and that the statute dealing with attempted murder was not included in the list of exceptions. (For more detail, see the former post linked above.)

The most recent case involved Jose Isasis Garcia Vasquez. He was arrested for involvement in a gang-related murder and was indicted for first degree murder by a Prince William County grand jury. However, he agreed to plead guilty to conspiracy to commit a felony (Sec. 18.2-22). He also pleaded guilty to being a member of a criminal street gang and committing a criminal act in association with that gang. He was sentenced to a total of 10 years in prison.

Taking into account the time served by Vasquez in jail while awaiting trial and the application of earned sentence credits of 4.5 days per 30 days served, the Department of Corrections (DOC) projected a release date of Feb. 19, 2025. Vasquez petitioned the Supreme Court for a writ of habeas corpus ordering his immediate release contending that he was eligible for the enhanced sentence credits of 15 days per 30 days served.

In his brief opposing the request, the Attorney General relied upon the phrase “any violation” of the first-degree statute contending, “’Any’ is an expansive modifier, and it demonstrates that the General Assembly intended to exclude inchoate murder offenses from the new maximum earned sentence credit rate.”

Again, the Supreme Court unanimously disagreed. Writing for the court, Justice Arthur Kelsey pointed out, “The question is whether ‘any violation of Sec. 18.3-32’ includes the inchoate offense of conspiracy to commit murder. The answer must be no. An accused criminal indicted for murder under Code Sec. 18.2-32 cannot be convicted on that indictment for conspiracy to commit murder under Code Sec. 18.2-22. Nor can an accused criminal indicted for conspiracy be convicted of murder.” In conclusion, the Justice went on, “Because the General Assembly chose not to disqualify conspiracy to commit murder from Code Sec. 53.1-202.3’s calculation of enhanced earned-sentence credits, Vasquez is entitled to these credits and thus to early release from prison.”


The text of the Vasquez opinion can be found here.

The Attorney General’s brief in opposition to the request for a Writ of Habeas Corpus can be found here.

My Soapbox

There are likely more offenders in Virginia prisons who were convicted of inchoate offenses and thus entitled to the enhanced earned sentence credits per the Prease and Vasquez decisions. Presumably, Chadwick Dotson, the DOC Director and a retired circuit court judge, will direct his staff to recalculate those offenders’ time left to serve on their sentences.

Miyares does have a point, however. The current law has some logical inconsistencies. For example, offenders convicted of solicitation to commit murder are not eligible for enhanced sentence credits, but offenders convicted of conspiracy to commit murder or of attempted murder are eligible for such credits. Such inconsistencies are not surprising considering the history of the legislation. There were two committee substitutes in the House that were then rejected in favor a floor substitute. Then there was a Senate substitute that the House rejected. Finally, there was a conference committee substitute that was accepted by both houses. With so many re-writes of a piece of complex legislation during a hectic session, it is not surprising that some issues were overlooked.

Ideally, the General Assembly would address such logical inconsistencies. There was a bill introduced in the past session (SB 476, Peake—R, Lynchburg), presumably at the behest of the Attorney General, that would have amended the statute. In presenting the bill to committee, Sen. Peake described it as a “clean-up” bill, while complaining that the Virginia Supreme Court had “messed up” over the General Assembly’s intentions. However, instead of focusing on inconsistencies or specific complaints, such as those convicted of attempted murder being eligible for enhanced sentence credits, the bill would have excluded all inchoate offenses from eligibility for enhanced sentence credits as well as limited the availability of enhanced sentence credits in certain other instances. Without much discussion, the committee killed the bill. Perhaps a more surgical approach would have had better results.

In the meantime, alert commonwealth’s attorneys need to be careful of what they allow defendants accused of murder to plea to in a plea agreement.

Two recent prominent conservative jurists advocated the use of textualism, sticking to the actual words of a statute. Justice Anton Scalia declared, “If you are a textualist, you don’t care about the intent.” Justice Neal Gorsuch is a self-proclaimed textualist. It would seem that the Virginia Supreme Court fits into this conservative approach to interpretation of the law, whereas our Attorney General does not.