"good time", 85% law, abolition of parole, and Wallens Ridge, Attica Rebellion, class struggle, Fishback v. Commonwealth, Free Virginia Movement (FVM), Inside Outside, Keefe Commissary Group, parole, Red Onion, slavery, Sussex I, Sussex II, truth-in-sentencing laws, VADOc, Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA), Virginia
The Free Virginia Movement
By Uhuru B. Rowe, Founder
REVISED May 12, 2017
WHO WE ARE
The Free Virginia Movement is an Inside-Out/Outside-In all-inclusive, coalition-based statewide movment and organizing effort founded by incarcerated people in the Virginia Department of Corrections in solidarity with the class struggles of Black, Brown, poor, low-income, disenfranchised, and working class people, to redress inhumane and harsh prison conditions; racial, class, and gender bias in the criminal legal system; the effects of mass incarceration and felony disenfranchisement laws on Black, Brown, poor, low-income and working-class communities; and the miriad of other laws, policies, and practices and procedures which discriminates against people because of their race, class, gender, sexuality, nationality, age, or disability. We recognize that incarcerated, Black, Brown, poor, low-income, oppressed, disenfranchised, and working-class people, are all victims of capitalist oppression and exploitation, Inside and Outside of prisons.
OUR PURPOSE AND ORGANIZING STRATEGY
The FVM seeks to unite the struggles of Black, Brown, poor, low-income, disenfranchised, and working-class people in solidarity with the struggles of incarcerated people, as well as build coalitions with Human Rights, Civil Rights, Prison Advocacy, and Radical Activist, and Student Organizing Groups, across Racial, Cultural, Political, Religious, Gender, and Ideological lines into a consensus decision-making, democratically-run longterm coalition, that will meet, serve, address, and champion the needs and concerns of ALL incarcerated, felony convicted, Black, Brown, poor, oppressed, low-income, disenfranchised, and working-class people on a day-to-day basis.
Specifically, we aim to ORGANIZE town hall meetings, forums, work shops, assemblies and other movement-building activities to EDUCATE the people about elected and appointed officials who have consistently voted and acted against the needs, concerns, and interests of incarcerated, Black, Brown, poor, low-income, disenfranchised, oppressed, and working class people; BUILD a powerful and influencial grassroots voting bloc capable of shifting local and statewide elections in our favor; CREATE a network of human rights, civil rights, prison advocacy, radical activist and student/youth organizing groups to pressure prisons, legislatures, and government officials to enact laws, policies, practices and procedures that will meet and serve the needs of incarcerated, felony-convicted, disenfranchised, poor, low-income, and working class people who are often victims racism, classism, sexism, xenophobia, trans-/homophobia, criminalization, police harassment and violence, and mass incarceration; ENGAGE in mass rallies, marches, mobilizations, collective strikes and boycotts, and other forms of nonviolent protests to culminate on September 9th of each year in commemoration of the uprising at Attica Correctional Facility in New York on September 9, 1971; and GENERATE streams of phone calls, e-mails, petition drives, etc. in a collaborative effort to challenge, change, and transform the social, political, and economic reality in Virginia for ALL people, whether free or incarcerated!
At every stage of the struggle WE, oppressed people, have petitioned the courts, filed grievances, appealed to the morality and conscience of those in power and authority over us, and patiently waited for the Virginia state government, and its various departments and agencies, to take corrective action. But just like the institution of chattel slavery, capitalism and mass incarceration are systems of oppression which uses incarcerated, Black, Brown, poor, low-income, disenfranchised, oppressed, and working-class people of ALL races, colors, creeds, genders, and sexual orientations as its nuts and bolts. The Free Virginia Movement seeks to break those nuts and bolts!
Because the oppression, exploitation, and social/population control of incarcerated, Black, Brown, poor, low-income, and working class people are the motives behind mass, longterm incarceration, and felony-disenfranchisement here in Virginia, the FVM represents and IS the United Front capable of liberating us from the shackles of capitalist oppression and exploitation and its resultant racism, classism, sexism, homo-/transphobia, xenophobia, mass incarceration and any other system of oppression.
WHY THE FREE VIRGINIA MOVEMENT?
A Federal law known as the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA), the largest Crime Bill in U.S. history with a price tag of $30 billion, was supported by Republicans and Democrats alike, and signed into law by former President Bill Clinton in 1994.
This Act included a provision called the Violent Offender Incarceration and Truth in Sentencing Incentive Grants (VOITIS) which provided grants to state and local correctional systems to expand their capacity to incarcerate violent offenders and impose longer and more determinate sentences. VOITIS is codified in federal law as Title 42, U.S.C.S., sections 13701, 13702, 13703, and 13704.
To qualify for these grants, states were required to pass Truth in Sentencing (TIS) laws which effectively abolished parole and mandated people convicted of Class 1 felonies to “serve not less than 85 percent of the sentence imposed….” (Title 42, USCS section 13704)
Lacking funds necessary to construct more prisons to accommodate its expanding prison population, VOITIS provided Virginia (VA) with an incentive to abolish parole for crimes committed on or after January 1, 1995, and implement TIS. House Bill No. 5001 was introduced by Republican Randy Forbes and signed into law by former Republican Governor George Allen during the 1994 Special Session of the VA General Assembly at a time when state Democrats controlled both the House and Senate.
House Bill No. 5001 was codified as VA Code 53.1-165.1. Consequently, the amount of “good time” incarcerated people could earn to reduce their period of incarceration for good behavior was dramatically reduced from a maximum of thirty days credit for each thirty days served per VA Code 53.1-201 (before parole was abolished) to a maximum of four and one-half days credit for the same thirty days served per VA Code 53.1-202 (after parole was abolished). Prior to the abolition of parole, TIS, and the dramatic reduction of good time credits, the prison population in VA was approximately 18,000. In 2013, it reached a record 40,000 people incarcerated throughout the state, many of them coming from Black, Brown, poor, low-income, and working class communities.
ECONOMIC IMPACT OF ABOLITION OF PAROLE AND TRUTH-IN -SENTENCING
Between 1996 and 1998, twenty-eight states which enacted TIS collectively received over $680 million in VOITIS grants, according to the U.S. Dept. of Justice, Office of Justice Programs. Fifteen out of twenty-seven states which received VOITIS grants in 1997 indicated that these grants were either a key or partial factor in their enactment of TIS which requires incarcerated people to serve no less than 85 percent of their sentences, including VA.
Between 1996 and 1998, VA alone received a total of $11,201,786 in VOITIS grants which was put towards the funding for this state’s construction of two maximum and two supermax prisons: Sussex I, Sussex II, Red Onion, and Wallens Ridge State Prisons, respectively. All four of these new “state-of-the-art” prisons began accepting people in 1997 and 1998, with Sussex II housing people contracted from the District of Columbia.
Because of laws like the VCCLEA and the draconian measures it spurred (e.g., TIS, abolition of parole, Three Strikes, expansion of police forces and prisons), the U.S. prison population has grown to become the largest in the world with 2.5 million mostly Black, Brown, poor, low income, and working class people confined in its local, state, and federal jails, prisons, and detention centers, which cost tax payers $80 billion annually.
In VA, the corrections operating budget, which exceeded $1 billion in 2014, commands the greater portion of the state budget each year at the expense of urgently needed social justice programs, such as quality childcare, education, health care, food, housing, jobs, and other basic human rights.
The abolition of parole and the implementation of TIS has not prevented, reduced, or deterred crime any more than it did prior to 1995; but has succeeded only in increasing the prison population and the annual corrections’ budget to one of the highest in the country, while warehousing Black, Brown, poor, low-income and working class people for decades.
Since taking office in 2014, Dem. Governor, Terry McAuliffe, sought to correct these injustices with his Executive Order #44, which created the bipartisan Commission on Parole Review as a vehicle to bring together elected officials, community organizations, professionals, faith leaders, and concerned citizens to discuss how parole could be reinstated without compromising public safety. However, state Republicans were so hostile to the idea of parole reinstatement–and the creation of the Commission itself–that Commission members never specifically discussed reinstating parole even though that was the reason for its creation in the first place. Furthermore, the few recommendations proposed by the Commission did not result in the passage of any laws during the 2016 and 2017 General Assembly Sessions as it relates to much needed criminal legal system reform.
Governor McAuliffe also signed an April 22, 2016 Executive Order which summarily restored the civil rights of over 200,000 violent and nonviolent felony convicted people who have successfully paid their debts to society and have made great strides towards becoming productive, law-abiding, taxpaying citizens of this Commonwealth. As expected, state Republicans opposed this move and sued Governor McAuliffe in court. The VA Supreme Court, bowing to partisan politics, nullified the governor’s April 22 Executive Order, relegating more than 200,000 people, mostly people of color, back to the level of second-class disenfranchised citizens.
Clearly, state Republicans’ fierce opposition to the creation of the Parole Review Commission, the reinstatement of parole, the restoration of rights, and other forms of criminal legal system reform, is actually a class war against Black, Brown, poor, low income, disenfranchised, and working class people who are the overwhelming majority of people who are sent to and warehoused in VA prisons.
Therefore, seeing that five Commission on Parole Review meetings were held where the opinions and concerns of family, friends, and supporters of incarcerated people, and of other poor, low-income, disenfranchised, and working class people in favor of parole reinstatement and other reform measures repeatedly fell on the deaf ears of Commission members; seeing that the Commission failed to recommend parole reinstatement because of opposition from state Republicans who have vowed that parole, in any form (including for juveniles sentenced to unconstitutional life without parole sentences) will never be reinstated so long as they constitute the majority in the House and Senate; seeing that Republicans will constitute the majority in the House and Senate for the foreseeable future; seeing that both the 2016 and 2017 Generally Assembly Sessions concluded without the passage of much needed criminal legal system reform; and seeing that mass incarceration, overcrowded and understaffed prisons, draconian truth in sentencing sentences, abolition of parole, long-term incarceration with little chance of early release, and cutbacks to CTE and other educational and rehabilitation programs will persist unabated, it is time for incarcerated, Black, Brown, poor, low income and working class people to UNITE, ORGANIZE, and AGITATE under the banner of the FVM which is rooted in the class struggle practice of “An Injury To One Is An Injury To All” and “None Of Us Are Free Until All Are Free.”
OUR GOALS (WHAT WE WANT)
1) WE WANT the Reinstatement of parole for all incarcerated people whose crimes occurred on or after January 1, 1995, and are currently serving a sentence under the so-called no parole (85%) law by repealing VA Codes 53.1-165.1 and 53.1-202.3, and reinstituting parole eligibility under VA Code 53.1-201. The above restoration of parole and Good Conduct Allowance must be RETROACTIVELY applied to ALL incarcerated people currently serving sentences under the no parole (85%) law.
2) WE WANT the Amendment and Reenactment of VA Code 19.2-303 so that ALL people currently incarcerated in the Virginia Department of Corrections (VADOc) can petition the court which heard their case for a suspension/reduction/modification of the unserved portion of the sentence after 1) serving a base minimum of fifteen (15) years, and 2) after the completion of an Educational/Vocational/Rehabilitation/Reentry Preparedness Program. The Amendment and Reenactment of VA Code 19.2-303 must be RETROACTIVELY applied to ALL people currently incarcerated in the VADOc.*
3) WE WANT the Amendment and Reenactment of VA Code 19.2-298.01 (B) and (F) so that the sentencing court must provide an adequate explanation when it sentences a defendant outside the sentencing guidelines to allow for meaningful appellate review of said sentence. This will promote the perception of fair sentencing and provide an appellate remedy when courts impose sentences which are outside of the sentencing guidelines recommendations. The Amendment and Reenactment of VA Code 19.2-298.01 (B) and (F) must be RETROACTIVELY applied to ALL people currently serving sentences under the no parole (85%) law.
4) WE WANT the Amendment and Reenactment of VA Code 53.1-40.01 so that the qualifying age for consideration of early geriatric “parole” is 1) the age of 55 or older and who has served at least five years of the sentence imposed or 2) the age of 50 or older and who has served at least ten years of the sentence imposed. The Amendment and Reenactment of VA Code 53.1-40.01 must be RETROACTIVELY applied to ALL people currently incarcerated in the VADOc.
5) WE WANT the Amendment and Reenactment of VA Code 53.1-44 so that it clearly articulates that ALL of the income, gains, profits, etc. accumulated as a result of the VADOc investment of funds in the Inmate Trust Account on stocks, bonds, and federally-insured investments be used solely to create more educational, vocational, rehabilitation, reentry, treatment, and work programs for incarcerated people, as well as for recreational supplies and infrastructure needs like library books, newspapers, and other periodicals, televisions, computers, microwaves, etc. Currently, the ambiguity of this law leaves room for the VADOc to profit off of and exploit incarcerated people by utilizing the income, gains, and profits derived from the investment of said funds in the Inmate Trust Account for its own benefit and not for the benefit of incarcerated people. Furthermore, WE WANT the implementation of a policy which mandates the issuance of a quarterly financial statement by the VADOc to ALL incarcerated people, and made accessible to the general public, detailing how and where these incomes, gains, and profits are being spent by the Department.
6) WE WANT the Amendment and Reenactment of VA Code 53.1-43.1 so that in addition to any incarcerated person sentenced to death or life imprisonment, any person sentenced to a lengthy “term of years” or a de facto life without parole sentence where their mandatory/Good Time release date is past their life expectancy, they must be EXEMPT from the withholding and depositing of ten percent of their incoming funds (sent to them by family and friends from poor, low-income, and working-class communities) into a Savings and Hold Account. Furthermore, ALL funds of incarcerated people currently held by the VADOc in a Savings and Hold Accounts MUST immediately be transferred to their Spend accounts if they meet the criterion above.
7) WE WANT the Amendment and Reenactment of the 13th Amendment to the U.S. Constitution to remove/strike the Slavery Exception Clause for felony convicted people. The 13th Amendment as currently constructed legalizes slavery for a person convicted of a crime (i.e. felony) and has led to the implementation of laws/policies which has a disproportionate impact on Black, Brown, poor, low-income, and working-class communities; the overpolicing and criminalization of Black, Brown, poor, and low-income communities; racial and class bias in the criminal legal system; mass incarceration of Black, Brown, poor, low-income, and working class people; felony disenfranchisement laws; exploiting the labor of incarcerated people for profit; private companies like Keefe Commissary, JPay and Global Tel Link overcharging incarcerated people for goods and services; private corporations contracted by the VA State government to build and operate prisons, jails, and detention centers; and the racial disparities in Virginia’s prisons and jails.
8) WE WANT the Enactment of a state law which grants every person convicted of a violent felony, upon their release from prison, the automatic restoration of his or her civil rights. Current government policy requires that a person convicted of a violent felony make a formal request to the Governor for the restoration of his or her rights five years after completion of their period of probation and parole.
This waiting period, and the bureaucratic red tape associated with the restoration process, has a disproportionate impact on Black, Brown, poor, low-income, disenfranchised, and working class people, prevents them from being recognized as full citizens, relegates them to a permanent second-class status with no rights, and denies them the opportunity to fully integrate back into society. The implementation of this state law MUST be RETROACTIVELY applied to ALL violent felony convicted people already released from prison
9) WE WANT the Enactment of a state law that will 1) require state courts to resentence those sentenced to Juvenile Life Without Parole (JLWOP) and Defacto Juvenile Life Without Parole (DJLWOP) sentences to a term that will allow a meaningful opportunity of release; or 2) require the Virginia Parole Board to conduct specialized Youth Offender Parole Hearings on the 25th year of incarceration for those sentenced to JLWOP and DJLWOP, taking into account the diminished culpability and hallmark features of youth and any subsequent growth and maturity during incarceration. The U.S. Supreme Court has ruled in the cases of Graham v. Florida, 130 S.Ct. 2011 (2010) and Miller v. Alabama, 132 S.Ct. 2455 (2012)–both of which the Virginia legislature and courts have refused to honor–that JLWOP sentences, which does not provide a meaningful opportunity for release, offends the 8th Amendment to the U.S. Constitution. Several state and federal courts also recognize that lengthy term-of- years sentences without parole are the functional equivalent of juvenile life without parole sentences (JLWOP). We refer to these as de facto juvenile life without parole sentences (DJLWOP). The implementation of either of these proposed state laws, which will put Virginia in compliance with U.S. Supreme Court precedent, must be RETROACTIVELY applied to ALL incarcerated people sentenced to JLWOP and DJLWOP sentences.
10) WE WANT the Enactment of a state law that will 1) require state courts to resentence those people who were sentenced between 1995 and 2000 when jury instructions about the abolition of parole now mandated by Fishback were not required, or 2) require the Virginia Parole Board to conduct specialized Parole Review Hearings for those people sentenced prior to Fishback. The VA Supreme Court has ruled in the case of Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000), that it was trial error not to instruct jurors during the sentencing phase of trial that parole had been abolished for crimes committed on or after January 1, 1995. However, the Fishback decision was not made retroactive and those who were already sentenced under the no-parole (85%) law prior to this ruling in 2000 did not have the benefit of the jury instruction now mandated by Fishback. The enactment of a state law as proposed above will correct this obvious injustice.
11) WE WANT the Enactment of a state law which raises the current minimum wage of $7.25/hour to a minimum wage of $15/hour. The current state minimum wage of $7.25/hour does not account for the rising cost of living and inflation, and as a result, minimum wage earners, most of whom are poor, low-income, disenfranchised, women, and formerly incarcerated, cannot adequately maintain and/or provide for themselves and their families with the basic necessities of life, e.g. food, clothing, and housing; in addition to obligations to pay off any court fines/fees imposed by the criminal legal system. To be able to work and provide for ones own self and family with the basic necessities of life is a fundamental Human Right, and the denial of this right as a result of the current minimum wage creates the conditions by which one may feel compelled to engage in black market criminal activities to supplement his/her income. This dynamic feeds into the hands of prisoncrats who has a vested interest in perpetuating mass incarceration and the criminalization of poor and low-income people, many of whom are people of color.
12) WE WANT the Enactment of a VADOc policy or state law that requires the VADOc to provide special conjugal visits on a predetermined basis for those people who are, or have been, legally and lawfully married, within the Department. Every person, whether incarcerated or free, heterosexual or lesbian, gay, bisexual, or transgender, upon marriage, should be able to consummate such a marriage with a conjugal visit.
13) WE WANT the Enactment of a VADOc policy or state law which authorizes unlimited, unrestricted access of the news media (print, internet, and television media) into any and all state prisons, jails, detention centers, and correctional facilities here in Virginia. The news media shall be allowed to use any audio, video, or other recording equipment when surveying the inside of a any state prison, jail, detention center, or correctional facility. In addition, the news media shall be allowed to interview any incarcerated or detained person, with request for such an interview made at least one week in advance. This is needed because incarcerated and detained people are isolated and hidden away outside of the public eye within a vast network of prisons, jails, detention centers, and correctional facilities where there is little to no transparency and accountability. This makes incarcerated and detained people particularly vulnerable to abuse, neglect, mistreatment, and other criminal and inhumane acts committed by those in authority over them. The above proposed media access will bring to light what has historically been kept in the dark behind a curtain of lies, corruption, secrecy, and cover-ups.
14) WE WANT the Enactment of a VADOc policy or state law which establishes an independent Ombudsman/Grievance Coordinator/Human Rights Advocate, wholly separate and independent from the VADOc, to receive, investigate, and resolve allegations of abuse, neglect, mistreatment, etc. made by people incarcerated in the VADOc in a fair and prompt manner. Currently, complaints and grievances made by incarcerated people are received and investigated by an Ombudsman/Grievance Coordinator/Human Rights Advocate who is employed by the VADOc. History and circumstances has shown that such a VADOc-employed Ombudsman/Grievance Coordinator/Human Rights Advocate is more loyal to other VADOc employees and biased against incarcerated people. Thus perfectly legitimate complaints and grievances made by incarcerated people are routinely rejected, ignored, overlooked, or swept under the rug in order maintain loyalty and a code of silence among VADOC employees.
15) WE WANT the REPEAL of VA Code 53.1-32 which allows the VADOc to levy co-payment fees against incarcerated people in exchange for Prison Health Care Services. Indeed, prisons themselves are mostly responsible for the illnesses incarcerated people develop, e.g. by, inter alia, denying them access the healthy and nutritious food and clean drinking water. Therefore, incarcerated people should be afforded FREE Health Care Services. Further, we understand that such a fee, along with disciplinary fines and exorbitant prices charged for commissary items, are just routine tactic used by the VADOc to exploit/extort incarcerated people to offset the rising costs associated with mass incarceration.
16) WE WANT the Abolition of any VADOc policy, practice, or procedure which violates the human/constitutional rights of incarcerated people and endangers/hinders their spiritual, mental, emotional, and physical health and wellbeing and rehabilitation efforts including, but not limited to: (A) VADOc Operating Procedure (OP) 601.6(IV)(c)(14) which prohibits incarcerated people from completing more than one Career and Technical Education (CTE) program; (B) O.P. 601.6(IV)(c)(9) which discriminates against incarcerated people with lengthy sentences and who wants to participate in a CTE program, by placing them on a separate “long list” where it may take years to enroll in a CTE program; (C) VADOc “cost saving” and counter-rehabilitative practice of assigning one incarcerated person to multiple work assignments to the exclusion of others who want “to learn job skills and develop good work habits and attitudes that [they] can apply to jobs after [they] are released.” (quoting O.P. 841.2(IV)(B)(4)); (D) VADOc “cost saving” practice of denying Hepatitis-C infected incarcerated people FULL access to FDA-approved drugs like Harvoni and Sovaldi–which are known to have cure rates of over a 90 percent–until they have developed internal organ damage or failure; (E) VADOc “cost saving” practice of regularly feeding incarcerated people cheap, soy, processed, and other synthetic meats which are known causes of various cancers and other serious health problems; (F) VADOc “cost saving” and counter-rehabilitative practice of not providing practical up-to-date, technology-based CTE programs. Current CTE programs offered by the VADOc are considered out-of-date compared to similar programs offered to citizens out in society. VA prisons must move towards a technological CTE programming system, and to not do so is a disservice to the communities incarcerated people will eventually return to. Therefore, CTE programs must resemble as closely as possible that of CTE training and programs offered to the average citizen as to prepare incarcerated people for the conditions of normal occupational life; (G) VADOc racially and politically motivated practice of censoring/disapproving books, newspapers, magazines, etc., which are geared towards an African-American, Leftist, Radical, or Progressive audience; (H) VADOc and Keefe Commissary Group’s exploitative and profiteering practice of price-gouging incarcerated people via regular price-hikes on all items sold in the prison commissaries; (I) VADOc exploitative and profiteering practice of levying and imposing fines on incarcerated people as punishment for being found guilty of a disciplinary infraction; and (J) VADOc inhumane practice of not providing incarcerated people with access to clean drinking water. The water in Virginia prisons is discolored, foul-tasting, and foul-smelling as a result of probably being contaminated with high levels of rust, lead, and other contaminants. Whether free or incarcerated, having access to safe and clean drinking water is a fundamental Human Right!
*Because nearly every policy, practice, or procedure of the VA Dept. of Corrections as it relates to incarcerated people are counter-rehabilitative, counterproductive and, in fact, operates in opposition to real Corrections, we in the Free Virginia Movement use a lowercase “c” in VADOc to reflect this point.