by Dick Hall-Sizemore
Our Attorney General has taken his lumps in court recently.
First was a jury acquittal in a high-profile criminal case he engineered. Later, the Virginia Supreme Court unanimously ruled against an agency that had been administering a provision of the Code based on guidance from the Attorney General.
The first case was that of Wayde Byard, the spokesman for the Loudoun County Public Schools who had been indicted for lying to the special grand jury established by Miyares to investigate the school system’s handling of the notorious sexual assault cases. The trial jury took less than two hours to render a verdict of not guilty. Miyares’ spokesperson commented that “we are disappointed with the jury’s decision.” Byard had been on administrative leave without pay. Shortly after the verdict, the county gave him nearly $89,000 in back pay and he was back at his desk.
The second instance is more complex. It is based on statutory interpretation and can get a little tedious. It is this stuff that lawyers and legislative nerds love. Also, some background is needed to understand the case. So, bear with me a little while.
The case involves the changes in earned sentence credits enacted by the 2020 General Assembly.
Since 1995, offenders in state prisons were eligible to earn up to 4.5 sentence credits (“good time”) for every 30 days served. A sentence credit is equal to one day. Therefore, if an offender earned the maximum number of sentence credits, he would serve only 85% of the sentence imposed by the court. However, the Department of Corrections (DOC) has considerable statutory discretion on how to administer sentence credits. It could deduct sentence credits for violating institutional rules, failing to participate in programs, etc. As part of its system of administering earned sentence credits, DOC established four levels. Offenders classified as Level I, minimum security, earned the full 4.5 days per 30 days served. Inmates classified as Level IV, maximum security, on the other hand, earned no sentence credits. Inmates were reviewed periodically and, depending on their records, could be moved up or down in the classification system.
The 2020 legislation made significant changes in the earned sentence credit program. Basically, it established a two-tier system for earning sentence credits. In one tier were those offenders convicted of certain specified offenses, primarily violent, who were limited to a maximum of 4.5 credits per 30 days served and not eligible for the enhanced earned sentence credits.
The second tier consisted of all offenders convicted of offenses not listed in the “ineligible list.” For this tier, the General Assembly used the approach developed by DOC and established levels for the awarding of earned sentence credits. The levels are defined below. It is important to note that the awarding of earned sentence credits is not based on the offense committed, but on the behavior of the inmate while incarcerated. The law requires that an offender’s classification be reviewed at least once annually and may be adjusted according to participation in programs and his behavior. It also authorizes immediate reclassification upon an offender’s removal from a program due to disciplinary or noncompliance reasons.
- Level I—15 days per 30 days served. Eligibility: participation in and cooperation with all programs to which the person is assigned and having no more than one minor correctional infraction and no serious correctional infractions as established by the Department’s policies or procedures;
- Level II—7.5 days per 30 days served. Eligibility: participation in and cooperation with all programs, job assignments, and educational curriculums to which the person is assigned, but requiring improvement in not more than one area as established by the Department’s policies or procedures.
- Level III-3.5 days per 30 days served. Eligibility: participation in and cooperation with all programs, job assignments, and educational curriculums to which the person is assigned, but requiring significant improvement in two or more areas as established by the Department’s policies or procedures.
- Level IV—0 days per 30 days served. Eligibility: willfull failure to participate in or cooperate with all programs, job assignments, and educational curriculums to which the person is assigned or causes substantial security or operational problems at the correctional facility as established by the Department’s policies or procedures.
The effective date of the legislation was delayed to July 1, 2022, in order to give DOC time to reprogram its data system that calculates release dates. However, the legislation specified that its terms would be retroactive for “the entire sentence of any person … participating in the earned sentence credit program on July 1, 2022.”
Questions quickly arose regarding the determination of who was ineligible to receive the enhanced earned sentence credits. DOC turned to Attorney General Mark Herring for an advisory opinion, especially on these issues:
- Inchoate violations—In legal terms, an inchoate crime is “a type of crime that is committed by taking a punishable step towards the commission of another crime. The three basic inchoate offenses are attempt, solicitation, and conspiracy.” The new legislation contained a lengthy list of offenses that would make an offender ineligible for the expanded earned sentence credits. DOC asked if the phrase “any violation of” followed by reference to a specific Code section meant that offenders who committed inchoate violations rather than the “completed” crime were ineligible to receive enhanced earned sentence credits.
The Attorney General replied that, unless explicitly specified otherwise, the statute embraces only the completed offense, as well as acting as an accessory before the fact or principal in the second degree. He based his reply on his finding that the General Assembly had specifically included certain inchoate offenses in the list of offenses ineligible for enhanced earned sentence credits but had been silent regarding inchoate offenses related to other crimes. Therefore, if the legislature had specifically included some inchoate offenses in the ineligibility list but not all, it must have meant those not specified to be eligible for enhanced earned sentence credits.
- § 18.2-31—The General Assembly was inconsistent in its wording in which it identified the offenses that would be ineligible for enhanced earned sentence credits. The first offense identified was “A Class 1 felony.” That was followed by a long list of offenses identified by specific Code sections covering most, if not all, violent offenses.
§ 18.2-31, the “aggravated murder” statute, defines numerous instances of premeditated murder as a Class 1 felony, punishable by a life sentence and for which earned sentence credits are not eligible.
DOC asked the Attorney General if the absence of a specific reference to § 18.2-31 meant that offenders convicted of inchoate offenses associated with that statute were eligible for enhanced earned sentence credits.
The Attorney General replied that offenders convicted of attempted murder and conspiracy to commit murder would be eligible for expanded earned sentence credits. He based his opinion on the following reasons:
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- The law excludes Class 1 felonies. Attempted aggravated murder and conspiracy to commit aggravated murder are Class 2 felonies. (See § 18.2-25)
- § 18.2-31 is not one of the enumerated statutes in the ineligibility list.
That opinion was issued in December 2021. In January 2022, Jason Miyares was sworn in as Attorney General. Shortly thereafter, DOC asked Miyares to “reconsider” Herring’s opinion regarding the eligibility for expanded earned sentence credits. (The most likely reason for an agency head to ask for an AG’s opinion to be reconsidered would be a directive from the Governor or the relevant Cabinet Secretary.)
In the meantime, the eligibility status for enhanced earned sentence credits for Steven Patrick Prease came up for review in DOC. Prease had been convicted in November 2013 of two counts of attempted murder of a law-enforcement officer, use of a firearm in the commission of a felony, and misdemeanor assault. Based on Attorney General Herring’s opinion, DOC informed Prease in March 2022 that he was eligible for enhanced earned sentence credits and, based on their retroactive application, he would be released between July 1 and August 30, 2022.
In April 2022, Miyares issued an opinion disagreeing with Herring’s previous opinion. He concluded that the phrase “any violation” encompasses the completed offense as well as associated inchoate offenses. Furthermore, he opined that offenders convicted of conspiracy to commit aggravated murder and of attempted aggravated murder were ineligible for expanded earned sentence credits. In coming to this conclusion, he pointed out that the statute specifically made anyone convicted of “solicitation to commit murder” ineligible for enhanced earned sentence credits. Accordingly, he said, to hold that a person convicted of actual attempts to murder someone or conspiring to do so would be eligible for enhanced earned sentence credits, while holding that someone convicted of soliciting to commit murder, a less serious crime, would be ineligible for such credits, would be irrational.
Accordingly, DOC informed Prease that he should not be packing his bags just yet. His release date had been revised to June 4, 2024. Prease, with the assistance of the Virginia ACLU, petitioned the Virginia Supreme Court in October 2022 for a writ of habeas corpus, claiming that DOC improperly denied his earlier release from prison.
On July 6, 2023, the Virginia Supreme Court agreed with Prease and issued a writ of habeas corpus directing DOC to release Prease from custody.
In its opinion, the Court made short work of disposing of the Attorney General’s arguments. First, there was the contention that the “General Assembly clearly did not intend for an individual convicted of attempted aggravated murder to receive expanded earned sentence credits.” To that the Court explained that it had consistently adopted the position that courts “presume that the legislature chose, with care, the words it used when it enacted the relevant statute.” (Justice Steven Agee, a former long-time legislator, probably chuckled at that presumption.) The Court went on to point to other guidelines it had used in the past regarding statutory interpretation: It is “our duty to interpret the statute as written and when this is done our responsibility ceases” and “we presume that the legislature says what it means and means what it says.”
The Court declared that the “plain language” of the statute excludes anyone convicted of a Class 1 felony from being eligible for the expanded earned sentence credits. “Prease, however, was not convicted of aggravated murder, he was convicted of attempted aggravated murder. [Emphasis in original.] This distinction is important because attempted aggravated murder is not a Class 1 felony; it is a Class 2 felony.”
Next, the Attorney General argued that the verbiage “any violation” indicated that the General Assembly intended to exempt inchoate crimes. The Court refused to bite. In its opinion, it dryly commented that the Commonwealth “appears to conflate” § 18.2-31 (the aggravated murder statute) with other statutes and even misidentified one of the statutes listed in the ineligible list as the “aggravated murder statute.” “As the present case deals with Code § 18.2-31, which is conspicuously absent from the enumerated offenses under Code § 53.1-202.3 (A), we do not consider the Commonwealth’s argument on this point.”
Finally, the Attorney General exclaimed that it would be absurd to hold that someone convicted of the more serious offense of attempted aggravated murder would be eligible for expanded earned sentence credits while someone convicted of solicitation to commit murder, a less serious offense, would be ineligible for those credits. (The statute explicitly excludes solicitation to commit murder from eligibility.)
The Court waved this argument away. It reminded the Attorney General that the Court had repeatedly explained that “an absurd result describes an interpretation that results in the statute being internally inconsistent or otherwise incapable of operation.” It declared that “neither of those situations applies here.” The Court went on to say, “Moreover, the public policy implications with the General Assembly’s inclusion of less serious offenses do not factor into our interpretation” of the statute. It concluded by citing several precedents in which the Court had held, “We can only administer the law as it is written” and not “upon the speculation that if the General Assembly had thought of it, very likely broader words would have been used.”
The full opinion of the Court can be found here.
My Soapbox
In its opinion, the Supreme Court adopted many of the same arguments and precedents cited by Mark Herring in his AG opinion while flatly rejecting the positions set forth by Jason Miyares in his AG opinion.
Aside from the smackdown of the current Attorney General, this case is interesting and important because it provides stark illustrations of:
- The importance of careful drafting of legislation. The specific words that are used matter.
The proper deference of the courts to the legislature. When the language is clear, it is not the role of the courts nor, by extension, the Attorney General, to substitute what they think the legislature really intended or what they think the legislature should have said.
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