By Dick Hall-Sizemore

Increasing earned sentence credits for offenders in state prisons seems to have a good chance of passing in the General Assembly session. SB 5034 (Boysko, Fairfax) has been reported by the Committee on Rehabilitation and Social Services and re-referred to the Finance Committee.  The House Democratic Caucus’s agenda for the special session includes this issue.

So far, the discussions surrounding this issue have missed the fact that this bill, along with the reinstatement of parole that will come up in the 2021 regular session, will seriously undermine two major elements of the Commonwealth’s criminal justice system.

The first endangered element is the principle of “truth in sentencing.” This principle posits that all those involved in a criminal proceeding — judge, juror, prosecutor, defendant, victim, and the public — have a reasonably accurate idea of how long a sentenced felon will actually be in prison. The principle recognizes that there is a benefit to providing inmates an incentive to cooperate with prison authorities. Therefore, the federal Violent Crime Control Act and Law Enforcement Act of 1994 defined “truth in sentencing” as serious criminals serving at least 85 percent of their sentences. Virginia adopted this standard when it abolished parole ad established a maximum earned sentence credit of 4.5 days for every 30 days served for convicted felons sentenced to incarceration.

Increasing the number of earned sentence credits that an inmate may receive and establishing different schedules under which those credits can be earned would end the certainty which judges, jurors, prosecutors, and victims have come to expect under truth in sentencing. It might have the opposite effect of what reformers intend. Judges might begin trying to guess how much “good time” an offender might earn and thus increase sentences in an effort to offset any increase in good time so as to arrive at the actual time served that the feel the offense deserves. Of course, victims still could be dismayed when offenders are released earlier than they had anticipated.

The other element that could be undermined is the system of voluntary sentencing guidelines. Although largely unknown by the general public, the sentencing guidelines have been at the heart of judicial sentencing since 1995.

As part of its actions to abolish parole, the General Assembly created the Virginia Criminal Sentencing Commission and directed it to create a system of sentencing guidelines to use. I intend to write about the Sentencing Commission and the sentencing guidelines in more detail in a future post. For this post, I will cover just the highlights and the importance of the guidelines.

The key characteristic of the guideline is set out in the statute directing their establishment. They are “to take into account historical data, when available, concerning time actually served for various felony offenses…. [emphasis added]. The most important fact to note is that the sentencing guidelines are based on actual time served resulting from historical sentencing patterns, not on what the members of the Sentencing Commission view as appropriate sentences. The second important aspect to note is that the guidelines are not based on imposed sentences, but on the time actually spent in prison by offenders for specific offenses.

Another important aspect is that violent offenders are treated differently than nonviolent offenders by the guidelines. The law requires that the guidelines increase the sentences for violent offenders. I plan to go into more detail on this feature in the future post. Only about a third of the offenders committed to the state responsible population each year fall into the violent offender category. Therefore, the comments in this post concerning the guidelines apply to most, but not all, felony offenders.

The emphasis on actual time served means that the guidelines take into account good time earned by offenders in the past, as well as sentence time shortened by parole.  The assumption underlying this feature of the guidelines is that the time offenders actually spent in prison should be the measure used to develop the recommendations in the guidelines.

Because the sentencing guidelines take into account good time earned by offenders convicted before the guidelines went into effect, increasing the amount of good time (earned sentence credits) now would be akin to giving offenders “a second bite at the apple.” They would be getting the benefit of good time already built into the guidelines plus the benefit of additional good time.

Regardless of what one thinks of the merits of expanding good time, it is clear that doing so could seriously undermine the sentencing guidelines. If judges begin increasing their sentences in order to account for expanded good time, the number of sentences being out of compliance with the guidelines will increase. The Sentencing Commission monitors judicial compliance with the guidelines for each offense and, when the out-of-compliance rate increases beyond a certain point, the Commission may adjust the guidelines to reflect judicial behavior. That would result in the guidelines becoming, not a reflection of sentences that judges feel each offense deserves, but a combination of what the offense deserves plus judges’ guesses at the amount of good time to be earned.

Virginia’s sentencing guideline system has been a valuable component of the state’s judicial system.  Primarily it has reduced sentencing disparities across the state.  Before the system was in place, it was not uncommon for an offender in one region of the state to get a much harsher sentence than an offender in another region found guilty of the same offense in similar circumstances.  Although compliance with guidelines recommendations is voluntary, judges have accepted the system.  Consistently over the years, judges have complied with guidelines recommendations in about 80 percent of the cases.  The noncompliant cases have been split almost evenly between judges exceeding the guidelines and sentences that fell below the guidelines recommendation.  The system has received national and international recognition, with legislators and jurists from many states and several countries either visiting Virginia to talk to Commission members and staff or asking them to make presentations to their own legislative bodies or courts.

I agree with the bill’s proponents that many offenders can be rehabilitated and deserve a second chance.  Many of them committed their offenses when they were young and stupid (as we all once were).  Those sentenced to long terms, “20, 30, 40, 50 years” as related by Sen. Boysko in her presentation of her bill, deserve to have some incentive to improve themselves and to be rewarded for good behavior and their progress in rehabilitation.  However, most of the offenders with such long sentences are those who have committed violent crimes, such as armed robbery, and they are excluded from the bill’s provisions.  Only non-violent offenders, for whom the guidelines already factor in historical good time earned, would benefit.

Another implication of the legislation is its cost.  No fiscal impact statement has been posted for the bill yet, but there will be considerable cost.  The most immediate cost will the one DOC would have to incur to modify its automated time calculation system to accommodate the expansion of good time credits.  That expansion will not be standard across the board, but will vary with offense committed, participation in programs, infractions, and cumulative time served.  Developing that code and testing it will be a lengthy and expensive process.  In previous comments on this bill, I advanced the thesis that it would be applicable to a relatively few offenders because it was based on DOC’s existing security level  classification system.  Another reader challenged that interpretation and, upon reconsideration, I agreed that the bill seemed to be creating a separate classification system for the purpose of awarding sentence credits.  In such a case the complexity and cost of modifying DOC’s automated inmate information system would be greater.  However, I later had a chance to watched the archived video of the committee meeting.  In that meeting, the bill’s sponsor, Sen. Boysko, seemed to equate the classification levels in the legislation with the existing DOC security levels.  Before the bill is finally enacted, the relationship between the levels in the bill and DOC’s security level needs to be clarified, so that the cost will be clearer and DOC will understand how to implement it.

One other cost factor needs to be pointed out.  The bill’s provisions would be retroactive, with the result that a lot of offenders would be eligible for release as soon as the bill is effective.  No data has been made public on the estimates of how many offenders that would be, but such a sudden influx would overwhelm probation officers, who already have heavy caseloads.  Unless additional probation officers are provided, the supervision of offenders on probation will suffer.

Proponents of the bill are likely to claim that the release of so many inmates will result in large savings for the state because the cost per inmate now exceeds $30,000.  However, those savings will not materialize for two reasons.  First, there are 4,000-5,000 state responsible inmates now housed in local and regional jails because the state lacks the bed capacity to house them.  For every inmate released due to the expanded sentence credits, a state responsible inmate will be transferred from a jail to take his place.  The state will save $12 per day in Compensation Board per diem payments to localities, but that will be far less than the claimed savings.  Secondly, the state cost per inmate often cited includes all overhead costs, such as administration and correctional officers.  Unless there is a decrease in the prison population, after allowing for the state responsible transfers from jail, sufficient to enable DOC to close a major prison, which is highly unlikely,  the savings from this legislation will be minimal.

Only a few of the current members of the General Assembly were in the legislature when  parole was abolished and the sentencing guidelines established.  Of the 54 Democrats in the House of Delegates,  almost half, 26, have been members only since 2018.  Other than the six lawyers in that group, most have probably not even heard of the sentencing guidelines.  Before they rush to expand earned sentence credits, with the unintended consequences, they need to look at the bigger picture.  It would serve them well to invite comments from the executive director of the Sentencing Commission.  She is well-known and respected by the members of the respective Judiciary Committees (to which SB 5034 was not referred).  They may decide that the benefits of an expansion of earned sentence credits would be worth the concomitant consequences.  But, at least, that would be an informed decision.