Virginia Supreme Court Denies New Sentence Credits to State Prisoner Serving “Mixed” Sentence
by Douglas Ankney
To paraphrase Job 1:21, the Supreme Court of Virginia did not giveth but taketh away on October 12, 2023, with a ruling on prisoner sentence credits that were extended by a 2020 law only to have a budget amendment make hash of them two years later.
Before the Court was the appeal of state prisoner Antoine Anderson, who began a 13-year sentence with the state Department of Corrections (DOC) in January 2013, after he was convicted of attempted escape, abduction and two counts of assault on a law enforcement officer. Under the Earned Sentence Credits (ESC) statute, Code of Virginia § 53.1-202.3, Anderson was eligible to earn up to 4.5 days of credit for every 30 days served if he maintained good conduct, held a prison job and completed eligible programming.
In 2020, the state General Assembly amended the statute to increase ESC, granting up to 15 days per 30 days served. Certain disqualifying offenses were ineligible, but prisoners serving “mixed” sentences for both eligible and ineligible offenses could earn the additional ESC on the portion served for eligible offenses. A clause also made it retroactive to cover a prisoner’s entire sentence, including time served prior to the law’s effective date on July 1, 2022.
Before that happened, though, Republicans retook control of the state House and narrowed Democrats’ majority in the Senate to just two seats. When the General Assembly met in early 2022 to adopt its annual Appropriation Act, it included Item 404(R)(2), eliminating any expanded ESC for prisoners serving “mixed” sentences; they were instead eligible only for the previous lower credit, “notwithstanding the provisions of section 53.1-202.3.” While Item 404(R)(2) also contained an enactment clause delaying effect until July 1, 2022, it said nothing of retroactive application. New GOP Gov. Glenn Youngkin signed the item into law.
Meanwhile Anderson had complied with all requirements for ESC, enough to move his release date up to 2022, two years early. DOC disagreed. With the aid of attorneys from the state chapter of the American Civil Liberties Union (ACLU), Anderson filed a state habeas corpus petition in August 2022, seeking immediate release. He argued that retroactive application of 53.1-202.3 meant he was entitled to the additional ESC for the time he had served up until July 1, 2022, when Item 404(R)(2) took effect. Failure to award the additional ESC violated his due process rights and the ex post facto clause, he claimed. But the circuit court denied his petition. So Anderson appealed to the Virginia Supreme Court.
The Court began by noting the conflict between the law and the budget amendment; as applied to prisoners serving “mixed” sentences, the former granted additional ESC for the qualifying portion of their sentence whereas the latter eliminated it. But “when the General Assembly provides that an enactment will govern ‘notwithstanding’ other laws,” the Court said it demonstrates “intention that the enactment shall be deemed operative if it conflicts with other laws,” citing Berry v. Bd. of Supervisors of Fairfax Cnty., 884 S.E.2d 515 (Va. 2023). Since Anderson had been convicted of abduction and that was a disqualifying offense, Item 404(R)(2) limited him to a maximum of 4.5 ESC per 30 days served, regardless of any time he may have served on qualifying offenses.
As to Anderson’s ex post facto argument, the Court found his situation different from the prisoners in Weaver v. Graham, 450 U.S. 24 (1981). In that case, the Supreme Court of the U.S. (SCOTUS) held that a Florida law reducing good-conduct credits from levels available when the prisoner committed his crime ran “afoul of the prohibition against ex post facto laws” because “the new provision constricts the inmate’s opportunity to earn early release, and thereby makes more onerous the punishment for crimes committed before its enactment.” Here, though, Anderson continued to be eligible for the same 4.5 ESC per 30 days served that was available when he committed his offenses. Since Item 404(R)(2) did not make his punishment “more onerous,” it did not violate the ex post facto clause. Had Code 53.1-202.3 taken effect prior to Item 404(R)(2), Anderson may have had a viable argument, the Court said. But as both provisions took effect simultaneously, Anderson was never eligible for the additional ESC.
For similar reasons, Anderson’s due process argument failed. The Court allowed that in Wolff v. McDonnell, 418 U.S. 539 (1974), SCOTUS found limited due process rights for prisoners when states create a liberty interest in credits that reduce their sentence. But that ruling also said that due process in this context “parallels the accepted due process analysis as to property.” Since no statute ever took effect granting Anderson additional ESC, the Court found he had no “legitimate claim of entitlement to” the property interest created in 53.1-202.3, quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).
Accordingly, the circuit court’s order denying the prisoner’s habeas petition was affirmed. See: Anderson v. Clarke, 893 S.E.2d 379 (Va. 2023).
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Related legal case
Anderson v. Clarke
| Year | 2023 |
|---|---|
| Cite | 893 S.E.2d 379 (Va. 2023) |
| Level | State Supreme Court |