by Hans Bader
The Virginia Senate has voted 24 to 15 to approve SB 842, the so-called “second look” bill. If it becomes law, inmates who have been in prison for 15 years or more could ask to be released, or ask for a reduction in their sentences. Originally, the bill applied to inmates of all types, but it was amended in the Senate Finance Committee to exclude first-degree murderers. Inmates released under second look legislation tend to be murderers (such as second-degree and first-degree murderers), although Oregon’s second look law excludes a few “aggravated” murders.
In 2022, the Democratic-controlled Virginia Senate passed an earlier version of the second look bill by a 25 to 15 vote, but it then died in a subcommittee of the Republican-controlled House of Delegates. That earlier bill was broader than this year’s bill in one way (it did not exclude even first-degree murderers such as serial killers) but narrower in another respect (it required inmates to meet specified “behavioral standards” in prison be released, which is not true of SB 842).
This bill faces an uncertain future in the House of Delegates. On the one hand, the bill is supported by many well-funded progressive interest groups with multi-million-dollar budgets, such as the ACLU, and supporters of the bill have massively out-lobbied opponents of the bill. On the other hand, it is opposed by the Virginia Association of Commonwealth’s Attorneys, which most House Republicans pay attention to. And most Republicans already oppose the bill.
Polls show voters tend to support second chances for nonviolent inmates. But the inmates who have been in prison long enough to petition for release under a second look law tend to be violent criminals. When citizens learn that, or read the fine print of second look legislation, they grow more skeptical of giving all inmates a chance for release. Richmond Sunlight, which tracks Virginia’s General Assembly and the thousands of bills pending before it, polls site visitors about whether they support or oppose each bill. In 2022, 80% of 54 visitors who took a poll about the second look bill opposed it (specifically, they opposed the 2022 bill SB 378, which has most of the same provisions as this year’s SB 842).
Support for SB 842 is based on fallacies about what it will do. Some support it because they mistakenly think inmates released under it will virtually never return to a life of crime, or because they view it as a way of giving clemency to the rare, exemplary inmate who poses no risk to society and thus deserves a pardon. A senator from southwest Virginia supports it because he views it as a non-political expansion of the pardon process used by governors of Virginia.
But it is nothing at all like a gubernatorial pardon process. SB 842 is modeled on second look legislation that released most inmates who sought to get out of prison, even when those inmates were anything but exemplary, and it was questionable whether they were fit to return to society. In Washington, D.C., 82% of inmates seeking release have been released under its recently-enacted second look law. As The Washington Post reported, “So far, D.C. judges have ordered the release of 135 people under the law….Twenty-nine requests were denied, according to the data. Of those released, the majority had been convicted of murder.” The Post was discussing this in a news story about a rapist who is seeking release even though he raped three women and forced the victims to dig their own graves.
Some of those released will return to a life of crime. DC’s second look law already “has led to 135 defendants being released early, of whom 28 have been rearrested,” according to The Daily Caller. That’s a 21% re-offense rate, even though most of those released inmates were released very recently (in 2022 or 2023), and re-offense rates rise over time as more and more inmates return to a life of crime. For example, when the U.S. Sentencing Commission looked at re-offense rates over a longer 8-year period, it found that violent offenders returned to crime at a 63.8% rate. Even among those over age 60, 25.1% of violent offenders were rearrested.
A progressive Virginia group falsely claims the Virginia second look bill would require inmates to have “participated in rehabilitative programs to be released,” but that is not true of the current version of the bill, whose text is found at this link.
Over 1,000 inmates could be released if Virginia’s second look bill passes. SB 842’s fiscal-impact statement says that “there were 4,865″ Virginia prison “inmates who meet the length of stay criteria set forth in this bill and would be eligible to file a petition” for release. Shawn Weneta, a lobbyist who helped draft Virginia’s second look legislation, predicted in 2022 that even under a low-ball estimate, the bill would empty “2 more Virginia prisons.” Virginia’s second look bill would release far more offenders than DC’s law, because DC has only 8% of Virginia’s population, and its second look law only applies to offenders who committed their crime before age 25, unlike the Virginia bill, which applies to offenders of all ages.
Advocates of second look laws aren’t concerned about the risk of releasing offenders who have served at least 15 years, because they erroneously assume such inmates have “aged out of criminal behavior over time,” with some falsely claiming that inmates can safely be released by their late 30s. For example, one group that testified for Virginia’s second look bill mistakenly claimed that keeping people in prison who were sent there “a decade ago” does “very little, if anything, to maintain safety.” But as the U.S. Sentencing Commission’s report shows, even inmates over age 60 reoffend more than a quarter of the time. There are real-world examples of offenders killing again even after decades in prison, although criminal-justice expert Michael Rushford says that longer sentences make inmates less likely to reoffend when they finally are released.
In The Washington Times, a supporter of Virginia’s second look legislation claimed that “longer sentences don’t deter crime,” so letting inmates out after 15 years won’t increase the crime rate. But there are studies finding that longer sentences do deter crime, including studies of two California laws. Incarcerating offenders substantially reduces the crime rate. When El Salvador dramatically increased its incarceration rate, its murder rate fell to a tiny fraction of what it had previously been.
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at hfb138@yahoo.com.
This column first appeared in Liberty Unyielding and is republished with permission.
