It is this last part, the language that gives the DOC the discretion to determine who is and who is not eligible for parole, that VA prisoners want to challenge in a class action. It is not uncommon for prosecutors to promise defendants that their crimes will be "certified" as being "part of a common act, transaction or scheme," in exchange for a plea of guilty. The defendant is under the impression that whatever sentence he/she receives will include parole eligibility. When they are handed over to the DOC, however, the DOC makes their own interpretation of section 53.1-151(B1) applicability, often rendering the prisoner ineligible for parole.
Clearly the language of section 53.1-151(B1) is ambiguous and its application by the DOC is arbitrary. There are liberty issues under the due process clause and violations of the ex post facto clause. To date, no individual VA prisoner, operating alone, has been able to successfully challenge this statute or its application. The law itself has never been challenged directly, only its interpretation and application in individual cases.
Mr. Steve Nash and Associates, Attorneys at Law, Oklahoma City OK, and John Matteson, Attorney at Law, Atlanta, GA have both offered their services. Volunteers from the University of Virginia Law School have offered to help research the law. The ACLU in Richmond, VA is willing to assist by compiling names of VA prisoners whose parole eligibility has been eliminated under this statute. The goal is to put together a class of prisoners who can challenge the constitutionality of section 53.1-151(B1). VA prisoners who are so affected should contact: Ms. Julie McConnell, Associate Director, ACLU, 6 N. Sixth Street, Suite 400, Richmond, VA 23219.
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