Published on Bacon’s Rebellion by Hans Bader

Do all inmates deserve a chance for release? Even a serial killer, or a serial rapist who has been locked up and released before?

They may soon have that chance in Virginia. In the state Senate, the Judiciary Committee has just approved the Second Look bill, SB 842. It would allow offenders of all kinds to file petitions for release or modification of their sentences after they’ve served 15 years. Judges wouldn’t have to grant the petitions, but they could if they think an inmate has mended his ways.

Under the bill, an inmate could be released despite any “combination of any convictions” such as being convicted of both murders and rapes. The bill was approved in an 8-to-6 vote largely along party lines, over conservative opposition.

Supporters of the bill argue that “everyone deserves a second chance.” But to critics, the bill goes beyond giving offenders a second chance, because it gives even the most persistent re-offenders the opportunity to seek release — people who already had and squandered a “second chance.” As an objector noted, “most inmates doing more than 15 years have already had their second, third, fourth, and fifth chances — the typical released state prison inmate has five prior convictions, according to Rafael Mangual, who studies the criminal-justice system at the Manhattan Institute.”

Once given a second chance, an offender can go on to kill or harm many people. 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 with burns and a broomstick. After being paroled years later at the age of 43, he murdered additional women — as many as 15 women in several states.

Nothing would stop a Virginia inmate similar to McDuff from filing a petition for release under the Second Look bill, even though a judge would likely deny the petition. But he could waste taxpayer money and prosecutors’ time by filing petitions for release, perhaps even with a court-appointed, taxpayer-funded lawyer. The Second Look bill often requires the court to “appoint counsel to represent the petitioner. An attorney appointed to represent a petitioner…shall be compensated at the same rate as an attorney” while representing indigent criminal defendants in the state of Virginia. That could lead to a flood of petitions for release at taxpayer expense, at a cost of many millions of dollars to Virginia taxpayers.

In practice, Second Look bills benefit mostly violent criminals, not non-violent offenders, because few non-violent offenders ever serve long enough (15 years) to qualify for a “second look.” The only offense that typically draws a sentence of more than 10 years is murder, according to Michael Rushford of the Criminal Justice Legal Foundation. SB 842 would let murderers petition for release even if they are serving life without parole for killing multiple people, meaning that the criminal justice system never intended for them to be released.

Supporters of second-look laws have pointed to how neighboring jurisdictions like Maryland allow judges to revisit some sentences. But Virginia may not want to become more like Maryland, which can be quite soft on crime. Maryland has a violent crime rate nearly twice Virginia’s, even though the two states are demographically similar, and Maryland is even more prosperous than Virginia.
Observers tend to attribute the higher crime in Maryland to its soft-on-crime policies — such as the the fact that “Virginia has stricter laws on the books” and “harsh sentences,” which are “a huge deterrent” to crime. “Criminals know if you commit crime in Virginia you might get whacked, while in Maryland, you might just get slapped on the wrist.”

A lobbyist for Virginia’s Second Look bill has predicted it would release so many inmates that it would empty two Virginia prisons — that’s under a conservative estimate. If that’s true, it could not only release some inmates who are still dangerous, it could also reduce the average prison sentence enough to increase the crime rate. Studies of two California laws indicate that longer sentences deter some crimes, by making it more costly to commit a crime. Thus, letting inmates out of prison early can increase the crime rate, even when the inmate being released is no longer dangerous. It sends a message to would-be offenders that they won’t face harsh consequences for committing a crime, as long as they later behave well enough in prison to get released early.

In Virginia, the Second Look bill has been described by journalists like Kerry Dougherty as an end-run around restrictions on parole. But Second Look legislation lacks the safeguards and consistency of the parole system. Parole boards apply consistent standards to all offenders in a state. But Second Look petitions are ruled on by hundreds of different judges who have different ideas about when to release inmates.

Hans Bader is an attorney residing in Northern Virginia. This column was first published on Liberty Unyielding and is republished with permission