by Hans Bader

Supporters of releasing criminals from prison make misleading claims. They say criminals age out of crime, and usually don’t return to crime after being released from prison. But a recent report of the U.S. Sentencing Commission shows how misleading these claims are, chronicling how most violent offenders return to violent crime after being released.

On February 10, the Commission issued a 116-page report titled “Recidivism of Federal Violent Offenders Released in 2010.” Over an eight-year period, violent offenders returned to violent crime at a 63.8% rate. The median time to rearrest was 16 months for these violent offenders. So, most violent offenders released from prison committed more violent crimes. Even among those offenders over age 60, 25.1% of violent offenders were rearrested for violent crimes.

Supporters of cutting sentences for violent offenders claim otherwise, even advocating that serial killers be eligible for release after 10 or 15 years. The ACLU of Virginia claims that “most people ‘age out’ of crime. By the time a person has been incarcerated for 10-15 years … they have matured significantly” and likely are safe to release. Similarly, the Virginia Grassroots Coalition claims that keeping violent offenders in prison for many years doesn’t “make us safer” because “violent crime is strongly correlated with youth.” And Families Against Mandatory Minimums claims that “long sentences” are not “necessary to keep us safe.”

These are the misleading claims they made for Virginia’s proposed “Second Look” law (SB 378), which would allow inmates to seek release after 10 or 15 years, regardless of what crime they committed. To make these claims, they had to ignore many well-known examples of killers murdering people yet again after being paroled. One example is Kenneth McDuff, the “broomstick killer.” At the age of 19, after being paroled, McDuff and an accomplice kidnapped three teenagers. He shot and killed two boys, then killed a girl after raping her and torturing her with burns and a broomstick. Later, after being paroled yet again, he murdered additional women — as many as 15 women in several different states.

Some murderers continue to kill even at an advanced age. At the age of 76, Albert Flick killed a woman, stabbing her at least 11 times while her twin sons watched. He had previously been imprisoned from 1979 to 2004 for killing his wife by stabbing her 14 times in front of her daughter.

But after hearing misleading claims about how criminals age out of crime, a committee of the Virginia legislature voted to approve a “Second-Look” bill that would let inmates — even serial killers and serial rapists — seek a much earlier release from prison. The February 7 vote by the Senate Judiciary Committee was along party lines, with all Democrats voting for the bill, and Republicans voting against it. The bill could pass the Democratic-controlled Virginia Senate, but it is unlikely to pass the Republican-controlled House of Delegates, where only one Republican currently supports it, and other Republicans have voted to kill similar legislation in the past.

Under the bill, SB 378, murderers currently serving life without parole could be released after 10 or 15 years — effectively cutting their sentence by three-fourths or more. It’s called “second-look” legislation, which has been adopted in limited form in the District of Columbia.

The District of Columbia has a violent crime rate that is five times Virginia’s. In 2018, its violent crime rate was 995.9 per 100,000, compared to only 200 per 100,000 in neighboring Virginia.

Yet, this bill would make Virginia more like the District of Columbia. It would give Virginia a more extreme version of one of Washington D.C.’s most controversial pro-crime policies, “second look” legislation. A second-look law lets judges cut sentences for criminals, or release them, after they have served 10 or 15 years — no matter how serious the crime they committed. Even if a criminal has been sentenced to life in prison for murdering several people, he can be let out after 10 or 15 years if he files a petition seeking release, and convinces the judge that he has been rehabilitated.

This Virginia legislation would let inmates who committed even the most violent crimes such as murder seek release after ten years in prison if they committed the crime before age 25, or after 15 years in prison if they committed their crime after turning 25. By contrast, Washington, DC’s law only allows people who committed their crimes at under age 25 to seek release, after they have served 15 years in prison.

In short, the Virginia bill would allow most criminals serving life sentences to seek release; the D.C. law lets only a minority of criminals serving life sentences seek release. Even so, DC’s law made 583 violent criminals (including many murderers and rapists) eligible for an earlier release. And its backers want to expand the law to cover crimes committed at all ages.

D.C.’s law was viewed as so extreme when it was passed that it was criticized even by the liberal Washington Post. “A bill to reduce sentences for violent D.C. felons goes too far,” said the Post’s editorial board in December 2019; “the measure would embrace a radical rejection of transparency in sentencing and straight dealings with victims.” Yet the Virginia bill, a more radical version of DC’s law was introduced on January 11 in Virginia’s senate as SB378.

Supporters of this bill might argue that neighboring Maryland has historically permitted judges to reduce many sentences. But 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.

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 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 to 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.

Studies indicate that longer periods of incarceration deter many crimes from being committed, and reduce recidivism rates. For example, a 2021 study found that when New York stopped prosecuting 16 and 17-year-olds as adults for most offenses, resulting in them spending less time incarcerated, their recidivism rates shot up. As Peter Moskos notes, “Recidivism among 16-year-olds went up” from 39% to 48% for offenses generally, and from 18% to 27% for violent felony offenses. Similarly, a National Bureau of Economic Research study found that longer sentences for repeat offenders in California deterred people outside of prison from committing murder, robbery, and rape.

Even for offenders who committed their crimes below age 25, reducing their sentence is a bad idea. Releasing even young killers can have a big impact on violent crime. Murder rates peak in offenders’ late teens and early 20s. About four in ten killers commit their crime before age 25. Once released, young killers often commit more violent crimes, including more murders.

Under this bill, judges, rather than just parole boards, could release offenders after they have served 10 or 15 years — even if they deliberately committed murder. This “second-look sentencing” is inferior to parole, because it is less consistent. Parole boards apply consistent standards to all offenders in a state, while second-look sentencing leaves decisions in the hands of different judges who have different standards.

“Second-look” sentencing is also bad because it gives no weight to deterrence. It lets judges consider whether the offender remains dangerous. But it doesn’t tell judges to consider whether the offender needs to remain in prison to deter other would-be offenders from committing similar crimes. Studies of anti-crime laws like California’s Proposition 8 found that longer prison sentences deter crimes from being committed by people who aren’t currently in prison. So people who commit the worst murders need to stay in prison, even if they repent while in prison, in order to discourage and dissuade other people from committing murder as well.

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