by Hans Bader

Voting along party lines, a legislative committee in Virginia’s Republican-controlled House of Delegates voted 5-to-3 yesterday to kill a bill that would have allowed a large proportion of the state’s murderers to seek release from prison.

The bill, SB 378, would have allowed Virginia prison inmates to seek release from prison after 10 or 15 years if they hadn’t committed a specified “disciplinary offense” in the preceding five years, or if a soft-on-crime prosecutor or judge waived such “behavioral standards.” Progressives argued that the bill should be approved because everybody deserves a second chance. Conservatives opposed the bill, saying that it would increase the crime rate and reopen old wounds for crime victims. The Democratic-controlled state senate had passed the bill on February 15.

The bill theoretically would have applied to all types of offenders, but in practice, it is mainly murderers who would benefit from what is known popularly as the “second look” bill. As the Criminal Justice Legal Foundation 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. In 2016 the median sentence for robbery was 3.2 years, and only 17 months for drug trafficking. 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.

The bill would apply to thousands of criminals: Shawn Weneta, a lobbyist who drafted SB 378, boasted that even under a low-ball estimate, SB 378 would empty “2 more Virginia prisons.”

Supporters of the bill claimed it was safe to release criminals after 10 or 15 years in prison, falsely claiming people age out of crime by then. One backer of the bill claimed that “people age out of crime by their late thirty’s.”

Opponents of the bill debunked these claims, pointing to evidence that many violent criminals do not age out of crime even by their 60s, and commit violent crimes even after being incarcerated for many years. They cited a recent federal report showing that: “On February 10, the U.S. Sentencing Commission released a report, ‘Recidivism of Federal Violent Offenders Released in 2010.’ Over an 8-year period, violent offenders returned to crime at a 63.8% rate. The median time to rearrest was 16 months for violent offenders. Most violent offenders released from prison committed more crimes. Even among those offenders over age 60, 25.1% of violent offenders were rearrested. That means some violent offenders don’t age out of crime even by their 60’s.”

As a critic of the bill noted, “Albert Flick committed murder a second time at age 76, and Kenneth McDuff returned to serial killing a second time after being paroled a second time after three decades in prison….they didn’t ‘age out of crime by their late thirty’s’ … as web sites supporting SB378 falsely claim — they falsely claim people age out of crime after 10 years in prison, which is why SB 378 lets [some] inmates be released after 10 years in prison regardless of what crime they committed.”

Critics of the bill also argued that the second-look bill would increase crime by making it less costly to commit a crime. If you get a shorter sentence for committing a crime, that’s less of a deterrent against committing it, so you may be more likely to commit the crime. Critics pointed to studies showing that longer sentences deter crimes better than short sentences, and that shorter sentences result in higher recidivism rates than longer sentences. They also cited a recent report showing higher rates of re-offending and recidivism when periods of incarceration fell.

Supporters of this bill noted that Maryland, Virginia’s neighbor, has historically permitted judges to reduce many sentences. But Maryland’s experience shows why cutting sentences is a terrible idea. Maryland has a violent crime rate more than double Virginia’s. In 2018, Maryland had a violent crime rate of 468.7 per 100,000 people, according to USA Today, compared to a violent crime rate of only 200 per 100,000 in Virginia.

As a critic of the bill noted, “Maryland has shorter prison sentences for criminals than Virginia does, and lets more inmates out early than Virginia does, and it has over twice the violent crime rate of Virginia, as a result. Even though police departments are just as good, on average, in Maryland as in Virginia, and Maryland is richer and has even more resources than Virginia. Sentence length is the difference that makes a difference, between the two states.”

Virginia’s Fairfax County is quite similar to Maryland’s Montgomery County, Md. The two counties border each other, have similar economies, cultures, and demographics, and had a similar crime rate back in the 1970s. Yet Fairfax County ended up with a a violent crime rate less than half Montgomery County’s in the 21st Century, such as in 2018. Experts attributed that to Virginia’s tougher sentences and its abolishing parole for violent felons in the 1990s.

The “second look” bill would gut Virginia’s tough sentences, allowing sentences to be shortened from 40 years or more for a murder down to 10 or 15 years. Virginia’s lengthy sentences have paid off in its low crime rate, which makes it one of America’s safest states. Virginia has a violent crime rate that is only half the national average. It has the lowest violent crime rate in the entire southeastern United States, and a lower violent crime rate than all neighboring states, especially Maryland, North Carolina, and Tennessee.

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” sentencing is also geographically discriminatory: Virginia’s “second-look” legislation would have allowed left-wing prosecutors in places like Norfolk, Fairfax, and Loudoun Counties to facilitate the release of offenders with bad prison records convicted in their county, by waiving the “behavioral standards” that otherwise would apply, like requiring offenders to have a fairly clean prison record to be released. By contrast, very similar offenders in conservative counties would likely remain imprisoned, because conservative prosecutors would never agree to waive such requirements. So criminals in progressive counties would get preferential treatment just because of where they were convicted.

Hans Bader is an attorney living in Northern Virginia. This column has been republished with permission from Liberty Unyielding.