OPINION:
In Virginia, legislation has been introduced to allow the release of all prison inmates after 15 years. That includes even serial killers serving sentences of life without parole.
In 2022, similar legislation passed the Democratic-controlled state Senate, only to die in the Republican-controlled House of Delegates. But this year, Democrats control both houses of the legislature, so it could become law. The proposed legislation would encourage but not require inmates to be released after 15 years and allow judges to order their release based on factors in favor of release and by giving most inmates the right to a taxpayer-funded lawyer to argue for their release.
The legislation instructs judges to consider factors favoring release, such as support from “stakeholders” for the inmate’s release and petitioners’ “efforts to participate in any educational or therapeutic programs.” It does not tell them to consider factors that justify incarceration in the eyes of the U.S. Supreme Court, such as the goals of deterrence and retribution.
Such early releases would increase the violent crime rate and make it harder to deter crimes such as murder. A 2014 study in the American Economic Journal found that early release of prison inmates increased the crime rate.
A 1998 study found that longer prison sentences deter violent crimes more effectively than short ones. For instance, when El Salvador dramatically increased its incarceration rate, its murder rate fell by more than 90%. The Virginia legislation is a much more radical version of the District of Columbia’s “second look” law.
Under the D.C. law, murderers such as a man 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. Most — 135 of the first 164 — inmates who sought release were freed, of whom “the majority had been convicted of murder.”
By reducing deterrence, this policy almost certainly contributed to a 36% increase in murders in the District in 2023. The Virginia legislation would be far worse because it applies to criminals of all ages, while D.C.’s “second look” law allows the release only of inmates who committed their crimes before age 25.
Supporters of Virginia’s “second look” legislation incorrectly claim that inmates won’t return to crime once they’ve already served at least 10 years. A group supporting Virginia’s 2022 “second look” bill wrongly claimed that keeping people in prison who were sent there “a decade ago” does “very little, if anything, to maintain safety.”
The reality is that even after a decade in prison, inmates often reoffend when they are released; 57.5% of federal inmates imprisoned for at least 10 years for violence were rearrested after being released, according to the U.S. Sentencing Commission. A backer of second-look legislation mistakenly claimed that inmates age out of crime by their late 30s. The U.S. Sentencing Commission found, however, that even among inmates over age 60, 25.1% of violent offenders were rearrested after their release.
Those who would increase the crime rate also incorrectly claim that “long prison sentences can increase, rather than reduce, recidivism.” In reality, long prison sentences reduce recidivism. The Sentencing Commission found that violent criminals’ rearrest rates tended to go down with longer sentences.
Supporters of this terrible legislation say inmates should be released because the children of inmates are “more likely to end up incarcerated themselves.” But that’s because inmates are bad role models who often have anti-social personalities, not because they are kept in prison where they belong. Keeping them in prison cuts their children’s crime rates. Criminal justice expert Charles Fain Lehman cites a recent study finding that “parental incarceration reduces children’s propensity to be incarcerated.”
Most people deserve a second chance. But second-look legislation goes beyond giving offenders a second chance; it gives even the most persistent repeat offenders — those who have been convicted five or more times — an opportunity to seek release yet again. The typical released state prison inmate has five prior convictions, according to Rafael Mangual, a criminal justice expert at the Manhattan Institute.
At some point, those who have done the crime need to do the time, and the public needs to be protected from predators.
• Hans Bader is a lawyer who handles constitutional and Freedom of Information Act cases. He lives in Virginia and practices in Washington.
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