On January 9, a bill was introduced to let Virginia prison inmates be released after 15 years with the approval of a judge. Even serial killers serving life sentences without parole would be eligible for release. In 2022, a similar bill easily passed the Democratic-controlled state senate, only to die in the GOP-controlled House of Delegates. But this year, Democrats control both houses of Virginia’s legislature, so it may pass.
The bill, HB 834, would not require all inmates to be released after 15 years, but it would encourage their release, by letting judges release inmates, based on factors slanted in favor of release, and by giving most inmates the right to a taxpayer-funded lawyer to argue for their release. The bill instructs judges to consider factors that typically favor release, such as “support from” stakeholders for the inmate’s release, “and the petitioner’s efforts to participate in any educational or therapeutic programs.” It does not list factors such as deterrence and retribution, even though the Supreme Court has ruled that those are both valid reasons to keep an inmate in prison, in decisions such as Tison v. Arizona (1987).
Such early releases would increase crime and make it harder to deter premeditated murders. A 2014 study in the American Economic Journal found that early releases of prison inmates increased Italy’s crime rate. A 1998 study found that longer prison sentences deter violent crimes more effectively than short ones, based on California’s experience after it increased sentences for repeat offenders who commit murder, robbery, or rape. (See Daniel Kessler, et al., Using Sentence Enhancements to Distinguish between Deterrence and Incapacitation, National Bureau of Economic Research Working Paper 6484 (March 1998)).
Similarly, a study of the London riots found that more severe sentences reduce subsequent crime. (See Brian Bell, Laura Jaitman & Stephen Machin (2014) Crime deterrence: Evidence from the London 2011 riots. The Economic Journal 124(576): 480–506).
When El Salvador increased its incarceration rate to the world’s highest rate, its murder rate fell enormously. The Wall Street Journal reported that “El Salvador, long whipsawed by gang violence that made it one of the world’s most dangerous countries, turned things around by jailing huge swaths of its population. The country once known for having the world’s highest murder rate now has the world’s highest incarceration rate.” (See Kejal Vyas & Santiago Perez, The Country With the Highest Murder Rate Now Has the Highest Incarceration Rate, Wall Street Journal, July 10, 2023).
HB 834 is a more sweeping version of Washington, DC’s existing “second look” law. Under DC’s law, many murderers, such as a criminal who killed two people, have been released, and some released offenders have reoffended and had to be arrested again even in the short time since they were released. In February 2023, the Washington Post reported that 135 out of the first 164 inmates who sought release were in fact released, of whom “the majority had been convicted of murder.” The Daily Caller reported that 28 of the 135 who were released had already been arrested again. Washington, DC does not seem like a good model for Virginia to follow, given that it experienced a 36% increase in murders in 2023, and a doubling in carjackings.
HB 834 would release far more criminals than DC’s law, because it applies to inmates who committed crimes at all ages, while DC’s “second look” law only applies to inmates who committed their crimes before 25 years of age. Moreover, unlike DC’s law, HB 834 does not require judges to find that an inmate “is not a danger to the safety of any person or the community” before releasing an inmate or reducing their sentence, the way DC’s law does. (See DC Code § 24–403.03).
Backers of Virginia’s “second look” legislation downplay the risk that inmates will return to crime after their release. A progressive ex-cop testifying in support of Virginia’s 2022 “second look” bill on behalf of a criminal-justice reform group erroneously claimed to the House Courts of Justice Committee that keeping people in prison who were sent there “a decade ago” does “very little, if anything, to maintain safety.”
But even after a decade in prison, inmates are typically arrested again after being released. 57.5% of federal inmates imprisoned for violence for ten years or more were arrested yet again after being released, according to a 2022 report from the U.S. Sentencing Commission. (See Recidivism of Federal Violent Offenders Released in 2010, pg. 33 (Feb. 2022)).
Backers of the legislation claim a “long sentence” is unnecessary because inmates age out of crime by their 40s. This is untrue — according to the Bureau of Justice Statistics, 81.9% of all state prisoners released in 2008 were subsequently arrested by 2018, including 74.5% of those 40 or older at the time of their release. (See Bureau of Justice Statistics, Recidivism of Prisoners in 24 States Released in 2008: A 10-Year Follow-Up Period (2008-2018) (Sept. 2021), pg. 4, Table 4, “Cumulative percentage of state prisoners released in 24 states in 2008 who were arrested following release, by sex, race or ethnicity, age at release, and year following release”).
Yet, Daniel Landsman, a FAMM lobbyist who supports the legislation, claimed on January 15 that “Once an individual reaches their 40s and 50s, the likelihood of offending is small and approaching zero.” Landsman made this claim in written testimony in support of HB 1325, a “second look” bill pending in the Washington Legislature. On January 16, he took part in a lobby day in Richmond to push for Virginia’s second-look legislation.
The same false claim has been made to Virginia’s legislature in the past. A woman writing in support of Virginia’s 2022 second-look legislation, SB 378, mistakenly claimed to the House of Delegates that inmates age out of crime by their late 30’s. But the U.S. Sentencing Commission’s 2022 report discloses that even among inmates over age 60, 25.1% of violent offenders were arrested again within 8 years of their release. (See Recidivism of Federal Violent Offenders Released in 2010, pg. 6).
Advocates of second-look legislation falsely claim that “long prison sentences can increase, rather than reduce, recidivism.” But in reality, long prison sentences decrease recidivism. The U.S. Sentencing Commission found that violent criminals’ rearrest rates were generally lower with longer sentences, in its 2022 report.
Criminal defense lawyers who developed second-look legislation say inmates should be released because children of inmates are “more likely to end up incarcerated themselves.” But that’s because many inmates are anti-social and are poor role models for their children. Incarcerating criminals actually cuts their kids’ crime rates. Criminal justice expert Charles Fain Lehman points to a recent study finding that “parental incarceration reduces children’s propensity to be incarcerated.” (See Samuel Norris, et al., The Effects of Parental and Sibling Incarceration: Evidence from Ohio, American Economic Review, Volume 111, no. 9, September 2021 (pp. 2926-63)).
Backers of Virginia’s second look legislation argue that “everyone deserves a second chance.” But the legislation goes beyond giving offenders a second chance, because it gives even the most persistent reoffenders an opportunity to seek release. The typical released state prison inmate has five prior convictions, according to Rafael Mangual, a criminal-justice expert at the Manhattan Institute. So such offenders have already had their third, fourth, and fifth chance.
