by Hans BaderIn 2022, legislation allowing inmates to seek a reduction in their sentence after 15 years in prison passed the Virginia state Senate, but died in a 5-to-3 vote in a House subcommittee after a lobbyist for the bill boasted it would empty two entire Virginia prisons. The bill, SB 378, was viewed by House Republicans and many prosecutors as too radical. It was criticized because, unlike other early-release bills, it did not exclude from release even inmates who committed the most violent offenses, such as serial killings and aggravated murders (Class 1 felonies).
In 2023, this bill has been introduced again, as SB 842. It is still known as the “second-look” bill. But this time, even safeguards found in the original legislation, such as that inmates exhibit mostly good behavior in prison before being released, have been removed — inmates no longer need to meet such “behavioral standards” to be released.
The new bill also allows violent criminals to be released without a formal finding that they are no longer a danger to the victim or the victim’s family, or to the community. Such findings are required as a safeguard by “second-look” laws in other jurisdictions, such as the District of Columbia. Washington, DC’s municipal second-look law requires a finding “that the defendant is not a danger to the safety of any person or the community” before a sentence can be reduced. (See D.C. Code § 24-403.03(a)(2)). But no such finding is required under the Virginia second-look legislation just introduced. Unlike Oregon’s second-look legislation, which does not allow killers who committed “aggravated murder” to be released, the Virginia second-look legislation would allow petitions for sentence reductions by inmates of all kinds, including serial killers, child-killers, and cop-killers.
The bill does not explicitly require judges to reduce any inmate’s sentence. But thousands of Virginia inmates have been incarcerated for more than 15 years and thus could petition for release under the bill. Shawn Weneta, a lobbyist who drafted Virginia’s second-look legislation, boasted in 2022 that even under a low-ball estimate, the bill would empty “2 more Virginia prisons.”
That prediction seems plausible, because the factors the bill lists for judges to consider in whether to release an inmate are slanted in favor of release. Most of the factors tend to favor inmates, such as the passage of time since the offense, “the decline in criminal behavior as individuals grow older,” and how inmates mature while in prison. But it does not list many factors that weigh in favor of continued incarceration, such as the need for deterrence or retribution. As the Supreme Court has recognized, criminal laws incarcerate offenders not just to rehabilitate them, but also for other reasons, such as to deter crimes by other people who have yet to commit a crime, as well as to incapacitate dangerous offenders and to impose retribution on an offender regardless of whether the offender repents after committing the crime.
The bill would theoretically have applied to all types of offenders, but in practice, it is mainly murderers who would be eligible to file petitions for release or reduced sentences under the bill, because inmates serving very long sentences tend to be murderers. As Criminal Justice Legal Foundation President Michael Rushford noted in The Washington Times, “Criminals who get sentenced to more than 15 years are typically the state’s most violent offenders, including those convicted of murder…the only felony that generally carries a sentence of over 10 years is murder…. So the primary beneficiaries of Virginia’s ‘second-look’ law will be murderers. While proponents of this law consider a 10-year sentence for any crime ‘extreme,’ I doubt that most Virginians would agree, especially when it comes to murderers. It’s the sentence they “deserved.” Inmates could petition for release regardless of what crimes they committed before going to prison, including serial killers and serial rapists who threatened to kill their victims.
While judges might reject most petitions for release by inmates with murder convictions, court hearings about the petitions would reopen old wounds for crime victims, who might end up opposing such petitions, over and over again. Williamsburg prosecutor Nate Green said petitioners would include those who committed “the most egregious crimes” and that if Virginia adopted second-look legislation, victims would have to “relive these horrors” due to inmates’ petitions for early release.
Advocates of second-look laws argue that “most people age out of criminal behavior over time,” with some falsely claiming that inmates can safely be released by their late 30s. For example, the Law Enforcement Action Partnership, which is funded by left-wing billionaire George Soros‘s foundation, mistakenly claimed that keeping people in prison who were sent there “a decade ago” does “very little, if anything, to maintain safety,” in its pitch to Virginia’s legislature to adopt second-look legislation.
But experts say many inmates do not age out of crime, even when they reach their 50s or 60s. In February 2022, the U.S. Sentencing Commission issued a report finding that over an eight-year period, violent offenders returned to crime at a 63.8% rate. Even among those over age 60, 25.1% of violent offenders were rearrested. Shortening sentences also may increase recividism by making crime seem less costly to offenders. As a criminal-justice expert noted in The Washington Post, “an exhaustive, decade-long study released in June by the U.S. Sentencing Commission, tracking more than 32,000 federal offenders released from prison in 2010, found that offenders released after serving more than 10 years were 29 percent less likely to be arrested for a new crime than those who served shorter sentences. Offenders who served more than five years were 18 percent less likely to be arrested for new crimes compared to a matched group serving shorter sentences.”
In The Washington Times, a supporter of Virginia’s second-look legislation claimed that “longer sentences don’t deter crime,” so letting inmates out after 15 years won’t increase the crime rate. But this claim was likely false, as a letter about second-look legislation in The Washington Times noted: “The New York City Criminal Justice Agency discovered last year that when juveniles were no longer prosecuted as adults — which led to them doing less time behind bars — their rates of re-offending increased. Their re-arrest rates rose from 40% to 48%. In 1998, the National Bureau of Economic Research found that when California law was changed to increase sentences for certain violent criminals, those crimes ‘fell by more than 10 percent relative to similar crimes not affected by the law, suggesting a large deterrent effect.’” A study by Santa Clara University researchers also suggests that longer periods of incarceration deter crimes from being committed.
There are many real-world examples of offenders killing again after decades in prison. 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. He was given a life sentence without parole. But years later, at the age of 43, he was paroled. He then murdered as many as 15 additional women. At the age of 76, Albert Flick murdered a woman, stabbing her 11 times while her kids watched. He had earlier spent 25 years in prison for killing his wife by stabbing her 14 times in front of her daughter.
Releasing offenders through “second-look sentencing” is worse than doing so by granting offenders parole, because second-look sentencing is less consistent and more arbitrary. Parole boards apply consistent standards to all offenders in a state, while second-look sentencing leaves decisions in the hands of countless different judges who have different philosophies about whether inmates should be released if they repent or behave while in prison.
“Second-look” laws are geographically discriminatory: Virginia’s “second-look” legislation would allow progressive prosecutors in places like Norfolk and Fairfax and Loudoun Counties to facilitate the release of offenders in their communities by supporting their petitions for release, and the progressive circuit judges in such places may well be sympathetic to such petitions. By contrast, very similar offenders in conservative counties would likely remain imprisoned, because conservative judges and prosecutors there will be likely to oppose such petitions. So criminals in progressive counties would get preferential treatment just because of where they were convicted.
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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