by David Reutter

Virginia has more than 3,500 prisoners eligible for parole, representing over 9% of its prison population of 38,000 – a significant number considering that the state abolished parole over 20 years ago. Still, even for those long-serving prisoners who are still eligible, the odds of being granted parole are slim.

Virginia ended parole in 1995 during the heyday of the “tough on crime” era. Prisoners sentenced since then have been required to serve their full prison term, less good time credits. This is one of the more restrictive examples of punitive “truth in sentencing” laws that were enacted in exchange for federal prison construction grants under the 1994 Violent Crime Control and Law Enforcement Act. The Act provided funding to states that required certain prisoners to serve at least 85% of their sentences, on average.

The over 3,500 offenders in Virginia’s prison system sentenced before the 1995 law went into effect have been subject to a parole board that emphasizes “self protection” by making “cautious” decisions. The chairwoman until recently was Karen Brown, a prosecutor for 16 years; the four current members include a former public defender, a city councilman and prison official, an attorney and state legislator, and a Baptist minister. Prisoners must obtain votes from three of the board members to obtain parole, or four if the conviction was for first-degree murder resulting in a life sentence.

University of Minnesota law professor Kevin Reitz, who is also a national expert on parole, commented on the board’s composition and the way it carries out its mission.

“The original model of the parole board is that this would be a group of experts who really knew something about human behavior and changing human behavior,” he said.

However, Reitz argued that fear has been driving the board’s decisions.

“There is a feeling that if I let this person out today, and God forbid, he or she goes on to do something terrible, then, that’s on me. On the other hand, if I make the cautious decision and keep the person in, then there’s no risk to me,” he stated. “They have a reasonably nice job, but if they make a mistake and let the wrong person out, that job could be gone tomorrow.”

According to the Virginia chapter of Citizens United for Rehabilitation of Errants (VA CURE), of the 3,156 cases the board reviewed in 2012, only 116 resulted in a grant of parole – or just 3.7%. The board refused to grant parole in 536 of the 547 cases it considered in December 2015 and 2016 – a 98% denial rate. During that time period, every prisoner over 50 was denied parole.

The Virginia statute that abolished parole also provided for “geriatric release” by requiring annual parole hearings for prisoners over age 60 who have served at least ten years, or five years for those over 65. But parole is rarely granted in those cases; of 1,417 elderly prisoners considered between January 2014 and March 2017, just 68 – 4.7% – were paroled.

In 2017, Governor Terry McAuliffe appointed Adrianne L. Bennett to chair the Virginia parole board. Bennett said that because the population of elderly prisoners is growing so fast, many younger prisoners are serving their sentences in city, county and regional jails scattered across the state.

“You’ve got people spending two or three years in a local jail because our prisons are now stuffed with old men taking up bed space,” she stated.

She cited statistics showing that young offenders are more likely to recidivate than older men whose criminal history “is long gone” – yet because there isn’t room for younger prisoners in state facilities, they are being released back into the community from local jails without the benefit of rehabilitative programs intended to reduce recidivism.

“Do we keep somebody warehoused who is no longer a threat to the community and has already served decades in prison?” Bennett asked. “A 60-year-old in prison or a 70-year-old in prison who committed an offense decades ago is a huge tax liability and is not making our community safer. We are warehousing old men who are no longer a threat. In fact, what it’s doing is making our communities less safe.”

The parole board’s dismal grant rate for elderly offenders, however, stands in sharp contrast to such comments.

The percentage of Virginia’s prison population over 50 grew from 4.5% in 1990 to 20% by 2015. A Department of Corrections report that year found 22% of prisoners who were supposed to be in state prisons were instead being held at local jails.

“We have a different culture in this country than exists in Canada or Europe where people who have committed very bad crimes serve 20 years or so, and that is pretty significant punishment,” said criminal defense attorney Steve Rosenfield. “Supporting that are our own studies in this country that show that once people reach their 30’s and start aging into their 50’s and 60’s, the rate and incidence of crimes that are committed by them when they are released is exceedingly small.”

That applies especially to those serving time for the most violent crimes. An often-cited Stanford University study of 860 murderers released on parole in California found only five returned to prison for new crimes, none of which were for homicide.

The high parole denial rate in the face of statistics that show it’s safe to parole certain offenders costs taxpayers $28,000 per year per prisoner. The cost for older prisoners is even higher due to medical expenses. In Virginia, the 9% of state prisoners over 60 years old account for 22% of the prison system’s budget for medical care.

Often, the focus during parole hearings is more on the original crime than an offender’s degree of rehabilitation.

“Many model prisoners are getting turned down for ‘nature of the crime.’ The door has been slammed on ‘old law’ prisoners,” said Stephen Northrup, executive director of Virginians for Alternatives to the Death Penalty and a retired attorney who dedicated a portion of his career to parole reform. “Many [prisoners] have good records but are made to rot in prison at the taxpayer’s expense. It isn’t cheap to keep a 70 year old in jail. It has gotten to the point where the governor is the only person that can change this.”

The public seems to support parole reform. A survey of 1,000 Virginians found 75% believe the state prison system costs too much. Two-thirds of those surveyed thought parole should be reinstated for most prisoners. Those who identified themselves as conservatives supported the idea by a 2-1 margin, yet Republican lawmakers have ignored the public’s wishes and opposed bills aimed at oversight of the parole board and reform efforts.

“In politics, if it takes time to explain an issue, you are losing. No one takes the time to learn the facts,” said Virginia Delegate Mark Sickles. “Saying you are tough on crime may go over well on the campaign trail, but in reality, crime isn’t lower now than in 1995 before parole was abolished. In many cases, new prisoners are committing the same crimes as old prisoners, and are getting out of jail faster than the pre-1995 inmates.”

Even prosecutors have expressed shock at the outcome of the law that abolished parole.

“I recently came across the commonwealth’s attorney who prosecuted my husband,” said the wife of a 73-year-old prisoner who has served 25 years on a parole-eligible sentence, “and he was astonished when I told him he was still in jail.”

Until 2000, judges were not required to inform juries during sentencing hearings that the state had ended parole in 1995. A bill introduced in the General Assembly in 2016 sought to make all prisoners sentenced by juries between 1995 and June 2000 eligible for parole, which would have applied to about 400 offenders. But it was narrowed by a Senate panel to apply only to nonviolent offenders, of which only 17 were still incarcerated, according to prison officials.

Regardless, the amended bill died in the Criminal Law Subcommittee of the House Courts of Justice Committee. Delegate Robert B. Bell, chairman of the subcommittee, said there was no evidence to suggest that juries would have handed down different sentences had they known that offenders were not eligible for parole. 

Sources: WVTE Public Radio, Capital News Service, Daily Press, www.richmond.com

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