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Virginia: Unproven Facts Used to Deny Parole Subject of Lawsuit, Settlement

A settlement agreement in a federal lawsuit forced the Virginia Department of Corrections (VDOC) and the state’s Parole Board to deem a prisoner eligible for parole. The settlement also reversed the agencies’ interpretation of Virginia’s “Three Strikes” law in that case.

State prisoner Jerry D. Lee, 45, was incarcerated in 1992 on nine common law robbery and attempted robbery charges. The robberies were committed over a nine-day period, and together netted no more than $1,200 to feed Lee’s drug addiction. He pleaded guilty to eight counts and received a 28-year sentence; in another county, his guilty plea resulted in a 40-year sentence with 25 years suspended for good behavior and other conditions.

Lee was required to serve a total of 44 years, but as a first-time offender he should have been eligible for discretionary parole in 2003. The VDOC, however, dashed his hopes for early release in December 1996, claiming he was ineligible for parole under Va. Code Section 53.11.-15q (BI)

That statute provides that defendants “convicted of three separate felony offences of (i) murder, (ii) rape, or (iii) robbery by the presenting of firearms or other deadly weapon ... shall not be eligible for parole.” Yet Lee was “never even charged with or indicted” for offenses involving a firearm or deadly weapon, he argued.

According to Lee’s attorney, Khang V. Tran, VDOC employees “routinely look through police reports, witness statements, etc., to determine whether a weapon was used in a robbery – and if so, consider it an ‘armed robbery’ for purposes of three strikes – even if the prisoner was never convicted of a weapons charge.”

Lee administratively appealed the VDOC’s decision, which was denied by prison officials and the Parole Board. In 2002, he again appealed to the Parole Board, which did not render a decision until April 2013. Represented by Tran, a federal civil rights complaint was filed in February 2015 challenging the VDOC’s interpretation of Lee’s parole eligibility.

“The complaint alleged violations of the 6th and 14th Amendments for using facts not found by a jury beyond a reasonable doubt to increase Mr. Lee’s punishment,” citing Alleyne v. United States, 133 S.Ct. 2151 (2013), Tran wrote.

A settlement was reached on June 2, 2015 in which the VDOC agreed that Lee would be deemed eligible for parole and a parole hearing would be held. He has since been released from prison. See: Lee v. Brown, U.S.D.C. (E.D. Vir.), Case No: 3:15-cv-00114-REP. 

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Related legal case

Lee v. Brown