Prison Investigation Prompts Virginia to Change Its Parole Practices

by | November 28, 2017

By Tim Eberly

The state parole board is changing how it interprets Virginia's three-strikes law in a way that could free hundreds of inmates -- many of them nonviolent -- who are serving prison terms significantly longer than the typical first-degree murderer, the board's chairwoman said Saturday.

The announcement comes after a Virginian-Pilot investigative story reported that a high percentage of three-strikes inmates have served two to three decades in prison for crimes in which no one was injured. The majority of inmates interviewed by The Pilot had never been to prison before and committed their crimes in a single spree.

Reached on a prison phone Saturday night, three-striker Leonard Outlaw, who has been incarcerated for 33 years, choked back emotion and repeatedly offered his thanks after learning of the parole board's changes.

"This is a chance for me to live life. The things I've been dreaming about doing, I actually have a chance to do, like play with my grandchildren," said Outlaw, 53, from Chesapeake. "You gave me life, man. These people killed me."

Adrianne Bennett, the parole board's chairwoman, said in an interview Saturday that the board is making two major changes to its interpretation of the 1982 three-strikes law under which the inmates were deemed parole ineligible.

The changes have already been made in practice -- as the board has discretion to do -- but will also be codified in revisions to the written policy if the governor's office approves it, Bennett said.

A spokesman for Gov. Terry McAuliffe did not return a call seeking comment for this story.

While the state Department of Corrections classified the inmates as three-strikers -- which significantly lengthened their prison terms -- the parole board has had the authority to overturn the DOC's three-strikes decisions since 1993.

"It's huge," Bennett said of the changes. "It's likely that there certainly could be quite a few people that are overturned -- their parole eligibility determination by DOC is overturned -- and they're good candidates for parole and they get released."

The most significant change she outlined is that the parole board will only uphold offenders' classification as three-strikers if their offenses were separated by time "at liberty." In other words, only offenders who wound up in and out of prison repeatedly would continue to be ineligible for parole. Inmates who committed their crimes in the same stretch of time -- and who had never been to prison before -- could be heading home soon.

The three-strikes law in question states that offenders have to be convicted of three "separate" offenses of murder, rape or robbery.

The Virginian-Pilot interviewed more than 40 three-strikes inmates, including many from Hampton Roads, for its Nov. 19 article. Most of them committed robberies in the same brief stretch in their late teens or 20s. With the parole board's shift, all of those inmates would become eligible for parole and could potentially be released in the coming months.

Another key change: The parole board is now requiring that, in order for robberies to qualify as three-strikes offenses, the inmate must have been convicted of a weapons possession charge.

The 1982 three-strikes law states that, for robbery, a qualifying offense is "robbery by the presenting of firearms or other deadly weapon." But the DOC and parole board have counted robberies as strikes if an offender merely implied or pretended that he or she was armed and was never convicted of a weapons charge in connection with the crimes.

The parole board's shift in practice could affect more than 200 inmates who have been in the Virginia prison system for decades. There are about 260 three-strikers behind bars, and, based on The Pilot's reporting, the vast majority of them likely were not "at liberty" between their crimes.

Bennett, a lawyer from Virginia Beach, said she submitted the board's proposed policy changes to Brian Moran, Virginia's secretary of public safety, on Nov. 16 -- the day before The Pilot published its investigative report online.

She said she had hoped that the changes could have been implemented prior to the article's publication. The Pilot spent more than three months reporting the story.

"Your article did push us to prioritize the three-strikes issue," she said.

Bennett granted The Pilot an interview on Sept. 14 for its original story. At that time, she said inmates did not have to be "at liberty" between their offenses to qualify as three-strikers. She also said she believed that such a condition "has never ... ever been a part of the language associated with the three-strikes offenders that we're dealing with now."

Weeks later, she hinted that major policy changes were afoot but did not agree to speak on the record about them before the article's publication.

In her interview Saturday, Bennett said she considers Nov. 16 as the date that the parole board put the new changes into practice. The board didn't meet that day, she said, but its five members had each agreed to the proposed changes to the written policy by then.

Other members of the parole board did not return calls seeking comment or could not be reached.

Bennett said the board's interpretation of the three-strikes law has concerned her since she became a member in 2015. But it wasn't until the newest member, Joni Ivey, joined the board in September, she said, that the panel reached a unanimous decision to make the changes that she described Saturday.

Bennett said since January she and at least two other board members had, as the majority, voted to reverse the parole eligibility of more than 10 three-strikers. Some of those inmates also were granted parole.

She did not report that to the Pilot in the September interview. In October, she did not respond to a request by The Pilot for records that would identify any such cases. The parole board does not have to comply with the state's public records law.

While it is parole board policy that three-strikes offenders are allowed only one appeal, Bennett said in light of the new changes all three-strikers can now contact the board for reconsideration of their status.

A three-striker's parole eligibility can be restored in as little as a couple of weeks, Bennett said. Once ruled eligible, inmates could be granted parole in four to eight weeks, she said. Inmates selected for release would be those who are not deemed risks to the public, she added.

The parole board's shift is seismic, considering that its three-strikes policy hasn't been changed since 1995. But board policies can be altered as members, appointed by the governor, come and go with every gubernatorial election.

The way to ensure that such changes stick would be to revise the 1982 three-strikes law itself. And a state senator from Northern Virginia told The Pilot this week that he plans to submit legislation to do that.

Sen. Scott Surovell, whose district includes parts of Fairfax, Prince William and Stafford counties, said he initiated the process Tuesday.

His planned amendment, if passed, would add language that inmates could no longer be classified as three-strikers unless they were "at liberty" between their three offenses.

The state's current three-strikes law, which essentially replaced the 1982 one, does require that inmates' three offenses be separated by periods of freedom. But that law didn't apply retroactively to the men and women, convicted between 1982 and 1995, who were deemed parole-ineligible under the earlier law.

"To me, that would solve the problem," said Surovell, who was elected to the Senate in November 2015.

Del. Marcus Simon, a former Army prosecutor, described the 1982 three-strikes law as a "legal gimmick" that needs to be changed.

"It sells, and it's a gimmick, but that's not a good way to make policy," said Simon, a Democrat from Fairfax County. "When you make policy around slogan and campaign gimmicks and things that grab headlines, it goes to show you that you can have some pretty poor results and bad policy decisions."

Probably no lawmaker in Virginia is better suited to offer his or her opinion on the three-strikes law than Republican Del. Chris Jones of Suffolk. In 1987, a drug-addicted woman named Sue Kennon tried to rob Jones' pharmacy with a broken handgun. Jones pulled a concealed firearm and shot her in the shoulder. Kennon survived.

She served 14 years in prison for four robberies before the parole board restored her parole eligibility and granted her release in 2001. The three-strikers interviewed by The Pilot weren't as fortunate, and plenty have served at least twice as much prison time as Kennon.

Jones said he would generally approve of a bill that added an "at liberty" requirement for three-strikers, with two conditions: that the parole board continue to have the final say in the matter, and that victims of the crimes have an opportunity to give feedback to the board.

"I think it's something that should be revisited," Jones said of the law. "It should be on a case-by-case basis, if they have been a model inmate."

Across the Elizabeth River in Portsmouth, Del. Stephen Heretick described the plight of three-strikers as "mind-boggling."

"You've got murderers getting in and out in less time than this, so exactly what is this proportional to?" said Heretick, a Democrat. "I don't think that anybody looking at that (Pilot) article, and looking at these facts, believes in their heart that this is a fair, or a just or a moral result."

(c)2017 The Virginian-Pilot (Norfolk, Va.)