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Federal Court Dismisses Virginia Lifers’ Parole Suit

On October 25, 2010, a federal district court dismissed a complaint brought by eleven Virginia Department of Corrections prisoners who alleged due process and ex post facto violations with respect to their parole hearings.

The prisoners had sought to represent a class of over 6,000 parole-eligible men and women incarcerated for violent offenses committed before January 1, 1995, when Virginia’s General Assembly abolished parole. They contended that the Virginia Parole Board had adopted practices subsequent to January 1, 1995 that deprived them of a “fair and meaningful opportunity” to be considered for parole.

The district court granted the defendant Parole Board members’ motion to dismiss the suit under Fed.R.Civ.P. Rule 12(b)(6). In so ruling, the court found that statistics with respect to parole release, as well as the changes related to the Board’s practices and procedures, were essentially irrelevant as a matter of law.

The district court held that neither the Constitution nor Virginia law created a liberty interest in release on parole protected by the federal due process clause. In regard to parole consideration (as opposed to release), on the other hand, the court found that the prisoners’ limited federal liberty interest was sufficiently protected so long as the Board provided at least one constitutionally valid reason for discretionary parole denial. It did not matter that the reason for denial was often no more than a variant of the boilerplate “serious nature of the offense.”

To the extent that the Parole Board may be failing to follow state law guidelines, the district court held that any such deviations “involve[d] at most a state procedural requirement that would be required to be enforced in the Virginia courts, under Virginia law.”

The prisoners’ ex post facto argument also failed, the court held, because their allegations about an increased risk of punishment were not linked to the implementation of any particular law, rule or regulation, but rather merely described a change in the manner in which the Parole Board lawfully exercised its discretion. See: Burnette v. Fahey, U.S.D.C. (E.D. Vir.), Case No. 3:10-cv-00070; 2010 WL 4279403.

On March 1, 2011 the district court denied the plaintiffs’ motion to amend the order of dismissal to be “without prejudice,” so as to allow amendment of their complaint. The court found the “Plaintiffs do not propose to amend their complaint in a way that affects the deficiency, whether certain named Plaintiffs received constitutionally sufficient due process. Because they cannot ‘allege facts sufficient to state all the elements of [their] claim,’ their proposed amendment ... is futile.” See: Burnette v. Fahey, 2011 WL 796739 (E.D. Vir. 2011).

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Related legal cases

Burnette v. Fahey

Burnette v. Fahey