Albemarle court rejects earned sentence credit challenge 

ACLU of Virginia says it will appeal case to state Supreme Court

By: - November 22, 2022 6:10 pm

(Alex Potemkin/Getty Images)

After an Albemarle judge struck down from the bench a challenge to the General Assembly’s last-minute change to a program that granted early release for state inmates with a record of good behavior, the American Civil Liberties Union of Virginia said it plans to appeal the ruling to the state Supreme Court. 

“You have to apply the language of the statute as it’s written,” said Geri Greenspan, an attorney for ACLU of Virginia. “We feel the court in this case failed to do that.” 

The case, Anderson v. Clarke and Bowles, is one of two the organization is bringing against the Virginia Department of Corrections over its interpretation of a provision added to the state budget in June rolling back some sentencing reforms. 

ACLU of Virginia sues Department of Corrections over earned sentence credits

In 2020, Democrat-backed legislation allowed Virginia inmates to earn more credits for good behavior or rehabilitation efforts that could reduce their sentences. While previously all inmates could earn up to 4.5 days of “good time” credit for every 30 days served, the new law allowed some to earn up to 15 days every 30. 

The enhanced credits couldn’t be applied to sentences for certain violent crimes like murder. For inmates with “mixed” sentences — those for both violent and non-violent crimes — enhanced credits could be earned to reduce sentences for their non-violent crimes, but not those linked to their violent crimes. 

Following the reforms, hundreds of prisoners were told they would be released early beginning July 1, 2022, the date the 2020 law was slated to go into effect. 

But at a one-day budget session in Richmond this June, in response to a request by Republican Gov. Glenn Youngkin, both the Republican-controlled House of Delegates and the Democrat-controlled Senate added language to the state budget blocking inmates with mixed sentences from earning enhanced credits, just weeks before they expected to get out. 

The ACLU of Virginia subsequently sued Virginia Department of Corrections Director Harold Clarke on behalf of inmate Antoine Anderson, saying the agency had incorrectly applied the new budget language to sentences that had already been reduced since the reforms went into effect. 

“The budget amendment should never have been applied retroactively to revoke sentence credits already earned,” the group argued

In a court filing, however, the department argued that because the 2020 law’s effective date wasn’t until July 1, 2022, “no changes could be made to any inmate’s official sentence computation before July 1, 2022.” 

Anderson’s “sentence just remains unchanged,” VDOC wrote. “At no time was he actually eligible to have enhanced sentence credit applied to his sentence — rather only the possibility of enhanced credit after the statute went into effect July 1, 2022 and only if it remained unaltered prior to its effective date.” 

On Friday, Albemarle County Judge Cheryl Higgins ruled against the ACLU. 

Greenspan said the judge determined that the 2020 bill and the June 2022 budget language “should be read in combination, and that the budget item should therefore apply retroactively, and that the General Assembly must have intended for the budget item to be applied retroactively to time served before the effective date.” 

The ACLU of Virginia is also challenging the Department of Corrections’ application of the earned sentence credit reforms in a separate case, Prease v. Clarke, which it has filed with the Supreme Court of Virginia. 


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Sarah Vogelsong
Sarah Vogelsong

Sarah is Editor-in-Chief of the Mercury and previously its environment and energy reporter. She has worked for multiple Virginia and regional publications, including Chesapeake Bay Journal, The Progress-Index and The Caroline Progress. Her reporting has won awards from groups such as the Society of Environmental Journalists and Virginia Press Association, and she is an alumna of the Columbia Energy Journalism Initiative and Metcalf Institute Science Immersion Workshop for Journalists.