by Hans Bader

Do all inmates deserve a chance for release? Even a serial killer, or a serial rapist who has been locked up and released before?

They may soon have that chance in Virginia. In the state Senate, the Judiciary Committee has just approved the Second Look bill, SB 842. It would allow offenders of all kinds to file petitions for release or modification of their sentences after they’ve served 15 years. Judges wouldn’t have to grant the petitions, but they could if they think an inmate has mended his ways.

Under the bill, an inmate could be released despite any “combination of any convictions” such as being convicted of both murders and rapes. The bill was approved in an 8-to-6 vote largely along party lines, over conservative opposition.

Supporters of the bill argue that “everyone deserves a second chance.” But to critics, the bill goes beyond giving offenders a second chance, because it gives even the most persistent re-offenders the opportunity to seek release — people who already had and squandered a “second chance.” As an objector noted, “most inmates doing more than 15 years have already had their second, third, fourth, and fifth chances — the typical released state prison inmate has five prior convictions, according to Rafael Mangual, who studies the criminal-justice system at the Manhattan Institute.”

Once given a second chance, an offender can go on to kill or harm many people. At the age of 19, while on parole, Kenneth McDuff shot and killed two boys, then killed a girl after raping her and torturing her with burns and a broomstick. After being paroled years later at the age of 43, he murdered additional women — as many as 15 women in several states.

Nothing would stop a Virginia inmate similar to McDuff from filing a petition for release under the Second Look bill, even though a judge would likely deny the petition. But he could waste taxpayer money and prosecutors’ time by filing petitions for release, perhaps even with a court-appointed, taxpayer-funded lawyer. The Second Look bill often requires the court to “appoint counsel to represent the petitioner. An attorney appointed to represent a petitioner…shall be compensated at the same rate as an attorney” while representing indigent criminal defendants in the state of Virginia. That could lead to a flood of petitions for release at taxpayer expense, at a cost of many millions of dollars to Virginia taxpayers.

In practice, Second Look bills benefit mostly violent criminals, not non-violent offenders, because few non-violent offenders ever serve long enough (15 years) to qualify for a “second look.” The only offense that typically draws a sentence of more than 10 years is murder, according to Michael Rushford of the Criminal Justice Legal Foundation. SB 842 would let murderers petition for release even if they are serving life without parole for killing multiple people, meaning that the criminal justice system never intended for them to be released.

Supporters of second-look laws have pointed to how neighboring jurisdictions like Maryland allow judges to revisit some sentences. But Virginia may not want to become more like Maryland, which can be quite soft on crime. Maryland has a violent crime rate nearly twice Virginia’s, even though the two states are demographically similar, and Maryland is even more prosperous than Virginia.
Observers tend to attribute the higher crime in Maryland to its soft-on-crime policies — such as the the fact that “Virginia has stricter laws on the books” and “harsh sentences,” which are “a huge deterrent” to crime. “Criminals know if you commit crime in Virginia you might get whacked, while in Maryland, you might just get slapped on the wrist.”

A lobbyist for Virginia’s Second Look bill has predicted it would release so many inmates that it would empty two Virginia prisons — that’s under a conservative estimate. If that’s true, it could not only release some inmates who are still dangerous, it could also reduce the average prison sentence enough to increase the crime rate. Studies of two California laws indicate that longer sentences deter some crimes, by making it more costly to commit a crime. Thus, letting inmates out of prison early can increase the crime rate, even when the inmate being released is no longer dangerous. It sends a message to would-be offenders that they won’t face harsh consequences for committing a crime, as long as they later behave well enough in prison to get released early.

In Virginia, the Second Look bill has been described by journalists like Kerry Dougherty as an end-run around restrictions on parole. But Second Look legislation lacks the safeguards and consistency of the parole system. Parole boards apply consistent standards to all offenders in a state. But Second Look petitions are ruled on by hundreds of different judges who have different ideas about when to release inmates.

Hans Bader is an attorney residing in Northern Virginia. This column was first published on Liberty Unyielding and is republished with permission


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31 responses to “Virginia Senate Committee Passes Second Look Bill”

  1. Stephen Haner Avatar
    Stephen Haner

    When it comes time to run against some of these folks in November it will be such a target rich environment…..but hard to believe this idea gets out of a House subcommittee. Zap.

    I was having a pleasant chat yesterday with two veterans of the Office of Attorney General under Mark Herring. The discussion included the previous expansion of appeal rights and how many additional staff OAG needed to add in its criminal division to deal with the influx. I had not known that the appellate staff has expanded so much it moved into a different building on Capitol Square. They may need a vacant shopping center if this passes.

    1. James Kiser Avatar
      James Kiser

      nothing like increasing the number of state employees.

  2. James Kiser Avatar
    James Kiser

    I like this idea,then the families of the victims can enact their own social justice.

  3. LarrytheG Avatar

    whoa!: Petition for modification of sentence; eligibility, procedures. (SB378)
    Introduced By
    Sen. Chap Petersen (D-Fairfax) with support from co-patron Sen. Joe Morrissey (D-Richmond)

    1. DJRippert Avatar

      Petersen trying to reestablish his liberal bona fides for a Democratic primary for statewide office?

      1. James Wyatt Whitehead Avatar
        James Wyatt Whitehead

        Petersen needs to shave the beard. Makes him look old and grumpy like Barney Frank.

      2. LarrytheG Avatar

        gonna lose his budding conservative base?

        1. DJRippert Avatar

          He never had a conservative base. He had a libertarian base.

          1. LarrytheG Avatar

            yeah but they voted GOP… faux libertarians

  4. f/k/a_tmtfairfax Avatar
    f/k/a_tmtfairfax

    Run ads against those who support the bill that include photos of murder victims. They should be adding time for anyone who uses a firearm in a crime with double the time for one that is not possessed legally.

    1. LarrytheG Avatar

      Photos of Petersen and Morrissey?

      I thought they were darlings of conservatives in Virginia?

      😉

      1. f/k/a_tmtfairfax Avatar
        f/k/a_tmtfairfax

        There is too much focus on the interests of a convicted criminal. Why not include information on the victims as part of any review of a convict’s sentence? And why aren’t the gun safety folks clamoring for stronger punishments for those commiting crimes with firearms, most especially illegal ones?

        1. LarrytheG Avatar

          I’m assuming since a judge will do the review, that will happen – and should.

          And I’d have no problem rejecting any/all convicted of multiple violent felonies in one incident and/or over time.

          I’m curious why the two sponsors of the legislation did not make that stipulation.

          1. Stephen Haner Avatar
            Stephen Haner

            They are defense attorneys. Duh.

          2. LarrytheG Avatar

            also legislators and considered more moderate by conservatives… and support from Conservatives for at least some of their stances…

  5. LesGabriel Avatar
    LesGabriel

    If I remember correctly, there is a short window of time for those convicted of a crime to bring forth new evidence in their case. If that is true, it seems like a more reasonable approach to those interested in justice to try to extend or eliminate that window.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      Virginia does have a short window in which to introduce new evidence and the bar is high to get a sentence overturned, even with new evidence.

      1. LesGabriel Avatar
        LesGabriel

        Has anyone introduced legislation to expand that window? It would seem to be a good candidate for bi-partisanship, especially if Virginia compares unfavorably with other states.

  6. Ever heard of the Youthful Offender Program? That’s the program Preston M. Walls, the Des Moines shooter was accepted into.

    “The police department news release said Walls removed a GPS ankle monitor, part of his pretrial release condition from the June weapons charge, 16 minutes before Monday’s shooting.”

    “Police allege that the incident originated from a dispute between opposing gangs. They did not provide further details.”

    “The criminal complaints says Walls is “a known gang member affiliated with a local hybrid criminal street gang” and that the two teenage victims were members of an opposing gang.”

    https://www.desmoinesregister.com/story/news/crime-and-courts/2023/01/24/18-year-old-charged-with-murder-in-des-moines-education-program-shooting/69834721007/

    1. Do hybrid criminal street gangs use Prius’s for their drive by shootings?

      1. I was wondering about that too. Perhaps the real eco friendly gangs shoot people from a Tesla.

        1. Matt Adams Avatar
          Matt Adams

          Eco friendly gangs, use railguns driving in a Tesla while that doubles as the railguns power sources.

          Lead isn’t environmentally friendly.

        2. Goin’ green up in heah….

        3. Matt Adams Avatar
          Matt Adams

          Eco friendly gangs, use railguns driving in a Tesla while that doubles as the railguns power sources.

          Lead isn’t environmentally friendly.

  7. Increase it to 25 years for any violent offender who has received a sentence of 50 years or more, and make the burden of proof for the inmate’s rehabilitation very high, and someone might be able convince me that such a “second look” law is an acceptable idea.

    Your point regarding the lack of a consistent standard for approving the release of inmates is an excellent one. As written, the law is ripe for inequitable application.

    And we should all fight against inequity, right?

    1. A relatively small percentage of the population commits a huge percent of the crime. If these programs don’t work, it could have a large impact.

      1. Yes. You are correct. But remember I said I might be convinced that a more stringent policy from what has been proposed is acceptable.

        It’s hardly a ringing endorsement.

        😉

        I also might be able to tepidly support some kind of sentence reduction program if murderers, rapists and such were excluded.

      2. Yes. You are correct. But remember I said I might be convinced that a more stringent policy than what has been proposed is acceptable.

        It’s hardly a ringing endorsement.

        😉

        I’d be more likely to tepidly support some kind of sentence reduction program if murderers, rapists and such were excluded.

  8. This looks to be nearly identical to SB378 from last year, which passed in the Senate 25-15 but was ultimately “laid on the table” by a 5-3 vote in the House Courts Committee, Subcommittee #1, and never got heard by the full committee or the House.

    I hope it is less successful this time around.

  9. Arthur Johnson Avatar
    Arthur Johnson

    The criminals are already getting HUGE breaks because of the law that already went into affect last year. Nobody is talking about this because not a lot of people know. The vast majority inmates are now categorized as Category 1 offenders and are eligible to receive nearly half (most getting a 45%) reduction in their sentences!!! Even if they have committed “mandatory” sentences, the Virginia Department of Corrections are allowing them to get basically half of their sentences off! This potential new law would now many Fentanyl dealers, illegal gun carriers, etc etc to get even more of their time cut off! This bill most absolutely needs to be stopped.

  10. Nancy Naive Avatar
    Nancy Naive

    That community is already in the process of dissolution where each man begins to eye his neighbor as a possible enemy, where nonconformity with the accepted creed, political as well as religious, is a mark of disaffection; where denunciation, without specification or backing, takes the place of evidence; where orthodoxy chokes freedom of dissent; where faith in the eventual supremacy of reason has become so timid that we dare not enter our convictions in the open lists, to win or lose. — Learned Hand, jurist (27 Jan 1872-1961)

    Died in 1961? So the social media was envisioned sometime before 1961 at least. Quite possibly this quote is the design document.

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