My Struggle for Freedom in the midst of Virginia’s Truth-in-Sentencing and Abolition of Parole Laws

I am a 38-year-old Black male from the city of Richmond, Virginia, who has been incarcerated at various prisons in the Virginia Department of Corrections for over 20 consecutive years. I am serving a 93-year prison sentence without the possibility of parole for my participation in a robbery that resulted in the shooting deaths of two innocent people.

Faced with overwhelming evidence of my guilt, I entered into a “blind” plea to two counts of second degree murder, robbery, and three counts of use of a firearm during the commission of a felony, although I never possessed a gun. Little did I know, my fate was sealed.

Taking into account the fact that I never possessed a firearm, together with the fact that I was barely 18 years old at the time of the crime and having no prior adult felony record or documented history of violence, the sentencing guidelines recommended a maximum prison term of 13 years. The sentencing judge at the time, James B. Wilkinson, ignored the recommendation and sentenced me to an aggregate prison term which, in theory and practice, is tantamount to life in prison term without the possibility of parole.

Two years later, Judge Wilkinson faced heavy scrutiny by local attorneys and was under investigation by the Judicial Inquiry and Review Committee for having a history of disproportionately sentencing Black defendants to unwarranted and excessively long sentences.

Having exhausted all available post-conviction remedies in the courts, prisoners like me have few avenues to regain our freedom here in the commonwealth of Virginia. Under Virginia Code Section 19.2-303, a defendant can motion the sentencing court for a reduction or modification of his/her sentence, but this motion must be filed before a defendant is transferred to the Virginia Department of Corrections.

Once a defendant is transferred to the DOC, the sentencing court loses its jurisdiction to entertain such motions. Because most lawyers do not exercise this option in a timely manner, the law offers no relief to prisoners like me who have already spent decades in prison.

Under Virginia Codes 19.2-327.2 and 19.2-327.10, a prisoner may petition both the Virginia Supreme Court and the Court of Appeals of Virginia, respectively, for a writ of actual innocence based on biological and non-biological evidence. In both instances, however, in order to qualify for relief under these Codes, a prisoner must have entered a plea of not guilty during his/her trial. Consequently, neither of these Codes offers relief for prisoners like me who pled guilty and admitted guilt.

Having exhausted all available post-conviction remedies in the courts, prisoners like me have few avenues to regain our freedom here in the commonwealth of Virginia.

Virginia code provides for the early conditional release of geriatric (elderly) prisoners. This law states:

“Any person serving a sentence imposed upon a conviction for a felony offense, other than a Class 1 felony, (i) who has reached the age of sixty-five or older and who has served at least five years of the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years of the sentence im­posed may petition the Parole Board for conditional release.”

As the reader can see, this code doesn’t take into account the age of the prisoner at the time he/she was sentenced. For instance, I was only 18 at the time of sentencing and will have to serve a minimum of 42 consecutive years until I reach the age of 60 before I can petition the Virginia Parole Board for conditional geriatric release.

Even then, conditional geriatric release is not guaranteed as petitions filed under this code are routinely denied. Between 1994 and 2010, only 15 elderly prisoners were granted early release under this code despite the growing cost to taxpayers for their end-of-life medical care.

Despite the current decades-long political climate in which “tough on crime” rhetoric is still the order of the day for conservatives and most Democrats alike, the only chance for prisoners like me to regain our freedom is through an act of clemency by liberal Democratic Virginia Gov. Terence (Terry) McAuliffe.

Article V, Section 12, of the Virginia Constitution and Virginia Codes 53.1-229 through 53.1-231 grant the governor of Virginia inherent power and authority to grant clemency to prisoners in the form of conditional pardons and commutation (reduction) of sentences. While clemency petitions are rarely granted in any state, I do have a compelling case which warrants the grant of clemency.

Of obvious importance is the fact that I have a broad network of individuals and organizations that support my clemency request. I have the assistance of attorney James B. Craven III, who agreed to draft and file my clemency petition.

The only chance for prisoners like me to regain our freedom is through an act of clemency by liberal Democratic Virginia Gov. Terence (Terry) McAuliffe.

My clemency petition has been pending since June of 2014. Well-known Virginia state delegates Jennifer L. McClellan and Joseph D. Morrissey, both Democrats, have each written a letter to Gov. McAuliffe urging him to grant me clemency.

In addition, Julia B. Hebner from the Richmond CURE chapter, Laura Magnani from the American Friends Service Committee-San Francisco branch, Earl Woodlen from the Harriet Tubman Safe House in Wilmington, Delaware, and a host of family and friends have all sent letters to Gov. McAuliffe supporting my clemency request. Political and community support evidences public acceptance that I have paid my debt to society and am trusted by fellow citizens.

All of my supporters agree that my 93-year sentence – which is 80 years, or 7.15 times, more than the sentencing guidelines – is excessive and represents an egregious abuse of judicial power and discretion. A 93-year term without the benefit of parole is a de facto (practical) natural life sentence.

My scheduled release date is May 15, 2076. I and others like me will die in prison before our release dates come to fruition. Many of us here in the Virginia prison system are undeserving of such a fate.

Why no parole?

A federal law known as the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA) includes a provision called the Violent Offender Incarceration and Truth-in-Sentencing incentive grants (VOITIS), which provided capital in the form of grants to state and local correctional systems to expand their capacity to incarcerate violent offenders and to impose longer and more determinate sentences.

VOITIS, codified into law at Title 42, USCS Section 13704, was sponsored and introduced to the U.S. Congress by former Rep. Jack Brooks of Texas and signed into law by then-President Bill Clinton the following year (The Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, Section 20102, 20103,108 Stat. 1796 (1994)).

Before states could qualify for grants under VOITIS, they were required to pass truth-in-sentencing legislation abolishing parole and mandating prisoners convicted of a felony to “serve not less than 85 percent of the sentencing imposed (without counting time not actually served, such as administrative or statutory incentives for good behavior).”

This federal law providing incentive grants inspired Virginia to do just that. This legislation (House Bill No. 5001) was sponsored by then-Republican Delegate Randy Forbes and signed into law by then-Republican Gov. George Allen during a special session of the Virginia General Assembly and codified into law as Virginia Code Section 53.1-165.1 (Acts 1994, Sp.S.II, c.l, eff. Oct. 13, 1994; Acts 1994, Sp.S.II, c.2, eff. Oct. 13, 1994). As a result of this legislation, Virginia’s prison population ballooned from 18,000 in 1994 to 40,000 in 2013.

Between 1996 and 1998, 28 states that enacted truth-in-sentencing laws collectively received over $680 million in VOITIS grants (see Office of Justice Programs, U.S. Department of Justice, Violent Offender Incarceration and Truth-in-Sentencing Incentive Program, at http://www.oip.usdoi.Rov/cpo/voitis). Fifteen out of 27 states that received VOITIS grants in 1997 indicated that these grants were either a key factor or partial factor in their enactment of truth-in-sentencing legislation or abolishing parole, including Virginia.

Between 1996 and 1998, Virginia alone received a total of $11,201,786 in federal tax dollars, which partly funded the construction of two super maximum and two maximum security prisons: Wallens Ridge State Prison, Red Onion State Prison, Sussex One State Prison and Sussex Two State Prison. All four of these high-tech prisons began accepting warm bodies in 1997 and 1998, many of them contracted from out of state.

The overall U.S. prison population grew 700 percent between 1970 and 2010. As a result, America currently has more of its citizens warehoused in prisons than any other country on earth. Even though Blacks and Latinos collectively make up a little over 30 percent of the overall U.S. population, we account for 70 percent of the total U.S. prison population. Specifically in Virginia, Blacks make up only 20 percent of the statewide population but 60 percent of the total prison population.

Truth-in-sentencing and three strikes laws, in addition to VCCLEA, VOITIS and states’ subsequent abolition of parole legislation, disproportionately affect poor people and people of color. These laws represent a gross racial injustice hidden in plain sight within America’s system of legal jurisprudence and are a prime example of human lives being traded and auctioned off in exchange for capital to expand an already massive for-profit prison industrial complex.

The overall U.S. prison population grew 700 percent between 1970 and 2010. As a result, America currently has more of its citizens warehoused in prisons than any other country on earth.

An important question that should be addressed is, if VOITIS grants were a key factor in Virginia enacting truth-in-sentencing legislation and abolishing parole, and Virginia stopped receiving VOITIS grants in 2007, why are Virginia prisoners still forced to serve 85 percent of our sentences and why hasn’t parole been reinstated?

As of 2014, the Virginia Department of Corrections’ annual budget has grown to consume almost $1 billion of Virginia’s tax dollars. This is happening at a time when Gov. McAuliffe announced $20.3 million in cuts in 2014 to the DOC budget to close a $2.4 billion revenue shortfall in the two-year state budget.

These laws represent a gross racial injustice hidden in plain sight within America’s system of legal jurisprudence and are a prime example of human lives being traded and auctioned off in exchange for capital to expand an already massive for-profit prison industrial complex.

It costs Virginia taxpayers $32,000 annually to keep long-term, rehabilitated prisoners locked up for crimes we committed in our youth. These tax dollars would better serve Virginians by funding early childhood (pre-K) education, pay raises for underpaid school teachers, repairing community-based drug treatment and prevention programs, community-based domestic violence prevention and intervention programs, community-based gang violence intervention programs, community-based social programs that feed the hungry, house the homeless, and provide free dental and medical care for jobless or uninsured poor people, and community-based reentry programs that assist and train newly released prisoners in transitioning from antisocial attitudes and behaviors – which often lead to crime – to becoming pro-social, forward-thinking, contributing members of our communities.