from Liberty Unyielding
On February 22, Virginia’s progressive House of Delegates removed language from the state’s proposed budget that limited early releases of inmates who committed both violent and non-violent offenses. It removed that language in a 53-to-44 vote, then passed the House’s version of the state budget by a 75-to-24 vote.
If the final state budget also lacks this language, it will be argued that the affected inmates are entitled to be released earlier, including at least 500 of them this year, and thousands more in the years to come. In 2023, the Virginia Mercury reported that 8,000 offenders in Virginia prisons are there for a combination of violent and non-violent offenses, and thus would be affected by this sort of provision.
This provision would allow the affected inmates to benefit from a 2020 law passed by Democrats that released many non-violent inmates earlier by dramatically expanding time off inmates’ sentences for avoiding major prison infractions and participating in prison programs. This time off is known as “earned sentence credits.” Affected inmates who previously received 4.5 days off their sentence for every 30 days they largely complied with prison rules instead got 15 days off . Effectively, this shrank their period of incarceration by nearly a quarter from what they otherwise would have served. Prisons have been emptied as a result: Virginia recently announced plans to close four state prisons in 2024.
Large-scale emptying of the prisons can increase the crime rate. A 2014 study in the American Economic Journal found that early release of prison inmates increased Italy’s crime rate. It could also undermine deterrence by effectively shortening inmates’ sentences. A 2014 study of the London riots found that more severe sentences reduce crime.
One might think expanded sentence credits would save taxpayers money by releasing inmates early and thus reducing correctional costs. But it apparently costs millions of dollars just to calculate or recalculate inmates’ sentence credits. The budget provisions dealing with the existing sentence credits say that “Included in the appropriation for this item is $8,125,783 in the first year and $8,125,783 in the second year and 105 positions from the general fund for the Department to implement the earned-sentence-credit structure set forth in” the 2020 law.
Moreover, the cost savings of releasing inmates may be modest. With Virginia prisons already emptying — the state prison population is down a lot over the past 5 years — keeping the inmates in prison won’t require building new prisons. And a “mostly empty” prison can cost most of what it costs to operate a full prison, according to even decarceration advocates like Professor John Pfaff. Sometimes, releasing an inmate saves a state as little as $4,000 per year, due to the fact that the inmate’s release doesn’t cut “fixed costs,” and payrolls tend not to be cut “in proportion to inmate population,” notes Professor Pfaff.
Once released, an inmate will often continue costing the state money, because released inmates are usually poor enough to qualify for Medicaid, and because some return to a life of crime, which can impose hundreds of thousands of dollars in additional costs on the economy for each criminal. A 1998 study in the Journal of Quantitative Criminology estimated that there were “$165,000 in victim costs per year of a criminal’s career” for a typical “career criminal.”
The 2020 legislation, as originally proposed, expanded sentence credits for both violent and non-violent offenses, but after a victim’s rights group and some prosecutors complained, it was amended to apply only to non-violent offenses. Democrats only narrowly controlled the state Senate then by a 21-to-19 margin, and a few Democrats like John Bell were reluctant to release violent criminals early. So they excluded violent offenses to get the legislation through the narrowly-divided state Senate.
Although violent offenses were excluded, many violent offenders still anticipated benefiting from the legislation, because they were incarcerated for both violent and non-violent offenses, and the legislation gave them expanded sentence credits on the sentences they were serving for their non-violent offenses.
This bothered not just most Republicans but also a few moderate Democrats like Lynwood Lewis and John Bell. So in 2022, the state’s biennial budget was amended with the support of Virginia’s Republican governor to include a provision blocking inmates with sentences for both violent and non-violent offenses from getting expanded sentence credits for their sentences for non-violent offenses.
That provision kept “more than 500 inmates” from being released in 2022, according to the Virginia Mercury.
But although that provision became law, it was seemingly never added to the state code. The state code provision dealing with earned sentence credits, § 53.1-202.3, does not even mention the amendment, even though the amendment is legally valid and was later enforced by the Virginia Supreme Court in Anderson v. Clarke (2023).
Does the absence of the provision from the state code mean that it was only temporary, and only lasted as long as the biennial budget lasted? If so, then if the provision is not included in this year’s budget, inmates with both violent and non-violent offenses will suddenly become eligible for expanded sentence credits, and earlier release. (Under federal law, a failure to include a duly-enacted statute in the U.S. Code does not render it temporary or unenforceable, as the Supreme Court explained in 1993. But do state appropriations riders last only as long as the budget they are in? This blog has no expertise in such matters).
Moreover, inmates will claim that the expanded sentence credits apply retroactively, to before 2022, for the entire period inmates have served while in prison, even during the period when the state budget explicitly banned them from earning expanded sentence credits. The 2020 law had a retroactivity clause (which is not found in the Virginia Code, either), saying “that the provisions of § 53.1-202.3 of the Code of Virginia, as amended by this act [to expand earned sentence credits], shall apply retroactively to the entire sentence of any person who is confined in a state correctional facility and participating in the earned sentence credit system on July 1, 2022.’”
Item 404(R)(2) of the 2022 state budget prevented those provisions from expanding the earned sentence credits of offenders who committed both violent and non-violent offenses. But the House of Delegates has removed this language from the 2024 budget, language in Item 404(R)(2) that had said:
Notwithstanding the provisions of § 53.1-202.3, Code of Virginia, a maximum of 4.5 sentence credits may be earned for each 30 days served on a sentence that is concurrent with or consecutive to a sentence for a conviction of [a violent] offense enumerated in subsection A of § 53.1-202.3, Code of Virginia
[This exclusion covers most violent offenses, although not attempted murder, ironically].
It this exclusion was merely temporary and is removed by the 2024 budget, did the fact that it stripped violent offenders of the right to earn expanded sentence credits during its existence, qualify or limit the earlier, more general language in the 2020 law allowing violent offenders to “retroactively” earn sentence credits for their non-violent offenses? Or does the retroactivity provision of the 2020 law apply, giving violent offenders the ability to claim sentence credits for their non-violent offenses prior to 2024 and 2022?
The governor would not like an expansion of sentence credits, but it is not clear what the governor can do about that. Virginia governors have a line-item veto, but that enables them to remove a line from legislation, not put lines back in. So if the state Senate agrees to the House’s amendment removing these lines from the budget, the governor will presumably not be able to line-item-veto the amendment. And the House and Senate have passed their proposed budgets by margins that are more than veto-proof — 75 to 24 in the House, and 38 to 2 in the Senate.
If this amendment opens the door to many inmates being released, it could also lead to many costly lawsuits being filed against the state seeking inmates’ release, for two reasons. First, the state prison system has not historically been able to comply with sentencing changes as fast as this budget amendment would go into effect. For that reason, the 2020 law expanding earned sentence credits had a delayed implementation date of July 2022, to give the prison system two years to recalculate all inmates’ release dates in light of their individual disciplinary records and program-participation records. Nationally, it is not infrequent for state prison systems to miscalculate inmates’ release dates, leading to litigation. A quarter of all Louisiana inmates are held past their correct release dates, resulting in repeated lawsuits against prison officials.
Virginia’s 2024 budget will go into effect on July 1, 2024, so new release dates would have to be calculated for a large number of inmates this year, based on the varying prison records of each inmate, if this amendment changes inmates’ sentence credits. If the prison system is unable to do that in time, expect to see a lot of costly lawsuits by inmates seeking their immediate release.
The second reason this amendment may lead to lawsuits against the state is that there may be legal disputes about whether these expanded sentence credits apply to the portions of inmates’ sentences served prior to 2024, which will create court disputes over when an inmate is entitled to be released. On the one hand, the 2020 law says it “shall apply retroactively” to grant expanded sentence credits. But on the other hand, the 2022 budget amendment, which was certainly valid through 2024, and which was upheld by the Virginia Supreme Court, says that expanded sentence credits may not “be earned” on “a sentence that is concurrent with or consecutive to” a violent offense. Regardless, inmates will claim the 2020 retroactivity provision controls and that the 2022 limit on their ability to earn sentence credits is an expired nullity.
We are not experts on these legal issues, or Virginia law, and will not hazard a guess about them, except to note that lawsuits cost lots of money and time to litigate. The ACLU has already repeatedly sued Virginia prison officials over how they have interpreted Virginia’s sentence-credit statute, including interpretations deemed correct by the courts, and interpretations deemed erroneous by the courts.
Republished with permission from Liberty Unyielding.
