Virginia’s shifting rules on sentence credits for state prisoners continue to end up before the state Supreme Court, which has twice spanked state Attorney General Jason Miyares (R) for failing to abide by the law. Several former prisoners who won release also filed a class-­action suit for damages in federal court against the state Department of Corrections (DOC) on June 28, 2024.

As PLN reported, state lawmakers in 2020 amended statutory earned sentence credits (ESC)— awarded for good behavior and participation in rehabilitative programming—and gave DOC until July 2022 to set up a system to track and calculate them. But at the last minute, new Gov. Glenn Youngkin (R) stepped in with a budget amendment that barred granting credits to those convicted of violent felonies. A more reactionary General Assembly, also newly elected, fell in line to pass it, even after DOC’s then-­Director Harold Clarke estimated that about 8,000 prisoners would be affected—including 560 set for release that same month.

Clarke then turned to Miyares, whose April 2022 advisory opinion took a draconian interpretation of the new law, denying credits even on the qualifying portion of a “mixed” sentence. The state Supreme Court denied a challenge to that in October 2023. [See: PLN, Jan. 2023, p.50; and May 2024, p.50.]

Steven Patrick Prease

But DOC lost another challenge to a delayed release on July 6, 2023, when the high Court granted a habeas corpus petition filed by Steven Patrick Prease, 45. He had been advised in March 2022 that he would be eligible for release between July 1 and August 30 of that year after serving most of a 14-­year sentence for attempted aggravated murder of a law enforcement officer; Prease had fired a gun during a domestic disturbance with his wife and then fired again when Botetourt County Sheriff’s deputies responded.

Aggravated murder is a disqualifying offense enumerated in the ESC law, Code of Virginia § 53.1-­202.3. But in his advisory opinion, Miyares decided that related “inchoate” offenses—attempt, conspiracy or solicitation to commit aggravated murder—were also disqualifying. Based on that, DOC recalculated Prease’s release date to June 2024, almost two years later than he’d been told. With the aid of attorneys from the state chapter of the American Civil Liberties Union (ACLU), Prease filed his petition challenging Miyares’ argument.

Taking up the case, the high Court agreed that the Attorney General’s interpretation of the law was overly expansive. As justices reminded Miyares, the Court has consistently “presume[d] that the legislature chose, with care, the words it used when it enacted the relevant statute,” pointing to Zinone v. Lee’s Crossing Homeowners Ass’n, 282 Va. 330 (2011). Someone “convicted of aggravated murder is ineligible to receive expanded earned sentence credits,” the Court said; but Prease “was not convicted of aggravated murder, he was convicted of attempted aggravated murder.” His petition was thus granted. See: Prease v. Clarke, 302 Va. 376 (2023).

Jose Isais Garcia Vasquez

DOC lost a similar challenge from state prisoner Jose Isais Garcia Vasquez, 24, on April 18, 2024. He was just 16 when an attempted robbery of a backpack turned bloody, leaving Javiel Rosado Santiago, 21, fatally shot. Vasquez and two other teens were charged with first-­degree murder; he pleaded guilty to conspiracy to commit first-­degree murder and was sentenced to 10 years in prison.

Based on Miyares’ opinion, DOC denied any ESC and calculated Vasquez’s earliest release was February 2025. With the help of ACLU attorneys, he filed a habeas petition accusing Miyares and DOC’s new Director Chadwick Dotson of improperly conflating a conviction for murder with one for conspiracy to commit murder. As the Supreme Court noted, the “dispute is not merely academic in this case. If Vasquez is correct, he is entitled to immediate release.”

Again the state argued that related inchoate offenses should be included. But the Court said “[t]his argument asks too much” of the law criminalizing murder. “No statute treats conspiracy to commit murder as a type of murder,” the Court noted. “Nor is there any common-­law tradition of doing so. It would be difficult, to be sure, to conceive how it could be.”

Apparently the state took an easy plea deal for a lower offense and then tried to punish the prisoner as if he had been convicted of the higher offense for which he was originally charged. Refreshingly, the Court slapped the state’s hand. Vasquez’s petition was granted, and with credit for ESC and time served while awaiting trial, he was released. See: Vasquez v. Dotson, 303 Va. 97 (2024).

Hamilton Hall Swart III

Though good news for prisoners like Prease and Vasquez, a winning habeas petition doesn’t allow recovery of damages for time spent wrongfully held past their proper release dates. That was the subject of a civil rights complaint filed in federal court for the Eastern District of Virginia in November 2023 by former state prisoner Hamilton Hall Swart III, 63.

Like Prease, Swart was among those whose ESC was swiped after Miyares issued his advisory opinion. Swart was charged with attempted aggravated murder after crashing into a police vehicle in 2009 and pleaded guilty. But when DOC treated his attempted murder conviction like a murder conviction, he was denied ESC. Swart never filed a habeas petition, and he was released in July 2023, a full year after he expected. With the aid of Charlottesville attorney Jeff Fogle, he then filed suit seeking damages from Miyares and Clarke for holding him too long.

On January 31, 2024, the district court found that the officials were entitled to qualified immunity (QI) and dismissed Swart’s claim. Defendants didn’t argue that Clarke was entitled to absolute immunity (AI), which Miyares claimed in rendering his advisory opinion. The Court shot that down, saying that the Attorney General failed to “fulsomely engage with any relevant Fourth Circuit or Supreme Court precedent on the issue.”

However, the Court said it could not deny QI to Miyares, since the opinion that he wrote—even though overruled by the state Supreme Court in Prease’s case—was not so out of line that it “shocks the conscience.” Clarke was also entitled to QI, since he reasonably relied on Miyares’ opinion. See: Swart v. Miyares, 2024 U.S. Dist. LEXIS 24180 (E.D. Va.).

Fogle, Swart’s attorney, noted that Miyares voted against the original 2020 measure to expand ESC when he was a delegate to the General Assembly—so his advisory opinion “was dictated more by his ideology than his knowledge of the law.” Swart has now turned to the U.S. Court of Appeals for the Fourth Circuit, where his appeal remains pending. PLN will update developments as they are available. See: Swart v. Miyares, USCA (4th Cir.), Case No. 24-­01117.

Leslie L. Puryear

In June 2024, attorneys from the ACLU and Relman Colfax PLLC in Washington, D.C., filed a civil rights claim in the district court accusing Clarke and Dotson of civil rights violations in denying sentence credits to former state prisoner Leslie L. Puryear, 37. Convicted of attempted carjacking and robbery, he was among those prisoners told to expect release in July 2022 only to have the date pushed back after Miyares’ advisory opinion. Puryear filed a habeas petition in September 2023, two months after the state Supreme Court freed Prease; two months later, in November 2023, DOC released Puryear and began recalculating ESC for all state prisoners.

Unlike Swart, who was freed the same month as Prease, Puryear—and many other state prisoners—had to wait months for DOC to release them, even though they were eligible. As a result, Puryear’s suit seeks class-­action status to represent all those similarly situated former prisoners. PLN will update developments as they are available. See: Puryear v. Dotson, USDC (E.D. Va.), Case No. 3:24-­cv-­00479.  

Additional sources: Fincastle Herald, Washington Post

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