RD190 - Report on Parole-Eligible and Geriatric Inmates in State Correctional Facilities


Executive Summary:
The 2009 General Assembly directed the Virginia Criminal Sentencing Commission to conduct a special study of parole-eligible offenders and geriatric inmates who remain in the state’s prison population. Item 48 (B) of Chapter 781 of the 2009 Acts of Assembly requires the Sentencing Commission to review the status of all offenders in the custody of the Department of Corrections (DOC) who are subject to consideration for parole and to determine the number of such offenders who have already served, or within the next six years will serve, an amount of time in prison that is equal to or more than the sentence that would be recommended by the current sentencing guidelines system. The sentencing guidelines in use today are an integral part of Virginia’s truth-in-sentencing system enacted in 1994. Item 48 (B) also requires the Sentencing Commission to review the numbers and types of older offenders who may be eligible for geriatric release under the provisions of § 53.1-40.01.

In 1994, the General Assembly passed legislation to abolish discretionary parole release and to establish a system known as “truth-in-sentencing” in Virginia. Parole was abolished for all felonies committed on or after January 1, 1995. Felony offenders must now serve at least 85% of their prison or jail terms. An important component of the reform, a new system of sentencing guidelines was implemented. These apply to all felons sentenced under the no-parole system. The sentencing guidelines for violent offenders (those with current or prior convictions for violent crimes) now recommend sentences that are significantly longer than the terms violent felons typically served under the parole system prior to 1995. Although parole was abolished for offenders committing felonies on or after January 1, 1995, offenders who committed their crimes prior to that date remain eligible for parole consideration. The geriatric release provision was enacted as part of truth-in-sentencing reform. An inmate convicted of a non-capital felony offense who has reached the age of 60 having served 10 years, or the age of 65 having served five years, is eligible for geriatric release. Originally applicable only to offenders sentenced under truth-in-sentencing laws, the 2001 General Assembly extended this provision to all prison inmates.

As of December 31, 2008, there were a total of 38,256 state-responsible inmates in Virginia. Nearly all of these offenders had been assigned an inmate number on DOC’s automated information system and could be categorized as either parole-eligible or not parole-eligible. At the end of 2008, 28,993 (80%) of the 36,232 classified inmates had been sentenced exclusively under the no-parole/truth-in-sentencing system. For the current study, the Sentencing Commission examined the 3,735 inmates confined on December 31, 2008, who were serving a prison term solely for parole-eligible (non-capital) offenses. Inmates serving for a combination of parole-eligible and no-parole felonies were excluded. Analysis revealed that murder/manslaughter, rape/sexual assault, abduction, and robbery offenses account for 88% of the parole-eligible offenders included in the study.

The Sentencing Commission was able to score the guidelines for 3,341 of the parole-eligible inmates. If an inmate had multiple sentencing events associated with the current prison term, the total guidelines recommendation was calculated by summing the recommendations from all of the relevant sentencing events. This results in a total recommendation that assumes consecutive sentences. By statute in Virginia, sentences are to run consecutively unless the judge specifies in the court order that all or a portion of a sentence is to run concurrent to that for another offense. The time served in custody as of December 31, 2008, was calculated by DOC for each inmate.

The study has certain limitations. The sentencing guidelines recommendation computed for each inmate is based on offenses identified in the automated data available to the Sentencing Commission. Any offenses outside of the automated data could not be included in the scoring of the sentencing guidelines for that inmate. In addition, the total sentence recommendation for an inmate is based on only those sentencing events covered by the guidelines (there are a small number of offenses not covered by the guidelines). Perhaps most significantly, the sentencing guidelines do not account for prior parole violations (parole violations are not scored on the guidelines and, therefore, do not increase the guidelines recommendation). Moreover, a probation violation associated with the inmate’s current prison term that was handled in a separate hearing, apart from any felony offense, cannot be included in the guidelines scoring (those probation violations are not captured in the automated data available to the Sentencing Commission).

For each parole-eligible inmate reviewed, the total high-end guidelines recommendation was compared to the time served in custody as of December 31, 2008. For 2,635 (or 78.9%) of the 3,341 parole-eligible inmates examined, the time served through the end of 2008 was less than the total high-end guidelines recommendation. For these inmates, the time served to that date was within the guidelines recommendation that the offender would have received had he been sentenced under the no-parole system. For 706 (21.1%) of the parole-eligible inmates, the time served in custody as of December 31, 2008, had exceeded the range recommended by the guidelines.

It is important to note that many factors may have an impact on an offender’s sentence, his parole-eligibility date, and ultimate length-of-stay. While the sentencing guidelines account for numerous factors related to the offense and the offender, the guidelines cannot account for every aspect of a case. For offenders serving an unusually long period of time in prison, there may be one or more aggravating circumstances not addressed by the guidelines. Compliance with Virginia’s sentencing guidelines is discretionary. Judges are free to depart and need only record a written reason when doing so. Overall, compliance with the sentencing guidelines for offenders sentenced under truth-in-sentencing is quite high, approximately 80%. In roughly half of all departures, however, judges give sentences that fall above the range recommended by the guidelines. Judges may take aggravating factors into account when imposing a sentence and the Parole Board may consider such factors when reviewing an inmate for parole release. It should also be noted that juries often recommend sentences that are substantially longer than sentences given by judges in comparable cases. Although judges by law can suspend a portion of a jury sentence, they do so infrequently. An inmate’s total sentence directly impacts how long he must serve prior to reaching his first parole eligibility date. Furthermore, inmates who have been returned to prison for probation and parole violations serve additional incarceration time and are less likely to be released to parole thereafter. Finally, inmates who have exhibited non-compliant or disruptive behavior while incarcerated will earn fewer good conduct credits and, therefore, will serve longer before reaching the first parole review. Institutional behavior may also affect the Parole Board’s decision to grant parole.

The Sentencing Commission further analyzed the 706 parole-eligible inmates who had served beyond the total high-end guidelines recommendation. Among inmates whose length-of-stay had exceeded the guidelines, robbery was the most common offense, with more than one-third (238) of the inmates convicted of this crime. The Sentencing Commission identified 80 parole-eligible inmates convicted of assault and 82 inmates convicted of burglary offenses who, according to the available data, had served more time than the current sentencing guidelines would recommend. Among inmates serving for assault, all had been convicted of malicious wounding, aggravated malicious wounding, or assault by mob and nearly one-third had a previous probation or parole revocation. Among inmates with burglary as their most serious offense, 16% had been convicted of a burglary with intent to commit murder, rape, robbery or arson and, overall, 26% committed the crime with a deadly weapon. In addition, more than half of the burglary offenders had multiple sentencing events associated with the current term of incarceration and more than two-thirds had a prior probation or parole revocation.

The analysis revealed 80 parole-eligible inmates convicted of drug offenses who had served beyond the high-end of the guidelines recommendation. All of these offenders were convicted of manufacture, sale, or distribution of a Schedule I or II drug, or possession with intent to distribute, under § 18.2-248. Data indicate that nearly three out of every four of the parole-eligible drug offenders had been revoked from parole at least once. Well over one-third of these inmates had two or more parole revocations. If probation violations are included, 84% have been revoked from community supervision in the past. Similarly, the majority of parole-eligible inmates convicted of larceny or fraud offenses had previous revocations. Only two of the 28 parole-eligible inmates convicted of larceny or fraud did not have a prior revocation of probation or parole.

The legislative directive requires the Sentencing Commission to determine the number of parole-eligible inmates who have already served, or within the next six years will serve, an amount of time in prison that is equal to or more than the sentence that would be recommended by today’s sentencing guidelines. The following table presents this information. Some inmates are expected to reach their mandatory release date before their time served in custody will surpass the high-end of the guidelines. These inmates have been excluded from the table.

Parole-Eligible Inmates Whose Time Served in Custody Has Exceeded or Will Exceed the Guidelines High-End Recommendation by December 31, 2014

2008: 706

Additional Inmates:

2009: 46

2010: 46

2011: 44

2012: 43

2013: 33

2014: 42

These figures exclude inmates who are expected to reach their mandatory release date before their time served in custody will surpass the guidelines high-end recommendation.

Per the legislative directive, the Sentencing Commission also identified offenders in the state’s inmate population who are eligible for geriatric release under § 53.1-40.01. As of December 31, 2008, the number of eligible inmates had reached 575. Of the total, 115 inmates had been sentenced exclusively under the no-parole/truth-in-sentencing system. Because truth-in-sentencing is applicable to felonies committed on or after January 1, 1995, a relatively small number of offenders sanctioned under truth-in-sentencing provisions have qualified for geriatric release consideration.

Approximately half of the geriatric-eligible inmates are between the ages of 60 and 64. The median time served for these inmates is 21 years, well over the 10-year minimum needed to qualify for geriatric release. The remaining eligible inmates are age 65 or more and have served at least five years. The median time served for these geriatric-eligible inmates was 17 years.

The number of inmates eligible for geriatric release is projected to increase in 2009 and 2010. By the end of 2009, 711 inmates will qualify. This number will grow to 882 by the end of 2010. A portion of these inmates may reach their mandatory parole release date (if they are parole-eligible) or the expiration of their sentence (if they were sentenced under no-parole laws) before they become eligible for geriatric release consideration.