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Virginia Parole Board Changes “Three-Strikes” Interpretation

by David M. Reutter

Virginia’s parole board is changing a policy under which the state’s “three-strikes” law was used to deny parole to 262 prisoners who previously had never been incarcerated before their current charges. The change came on the heels of an investigative report by the Virginian-Pilot, which found that state officials had abused the three-strikes law and “converted young men from first-time offenders to three-strikers in one swift motion.”

In 1982, Virginia passed a three-strikes law to deny parole to anyone convicted of three separate crimes involving murder, rape or robbery with a deadly weapon – with the term “separate” defined as “lacking a common act, transaction or scheme.”

“The idea of a three-strikes law is that you committed a crime, sat in jail and should have realized the wrongs of your ways, but then you go out and do it again,” said Washington, D.C. attorney Evan Werbel, adding that after the third conviction, “the three-strikes law basically says, ‘Enough is enough, and he’s never going to be rehabilitated.’”

Virginia abolished parole in 1995 for the types of crimes covered by the three-strikes law – but it was still used to deny parole to anyone convicted of three qualifying crimes, even when sentences for all three were handed down at the same time.

One of Werbel’s clients is Hellis D. McNulty, now 54, who committed nine robberies in three cities between December 1993 and January 1994. He was arrested later in 1994 and pleaded guilty, receiving a combined sentence that would have made him eligible for parole in 2002. But the state Board of Corrections (BOC) classified him as a “three-striker” and the parole board accepted that classification and used it to deny parole.

“That doesn’t give [him] a chance to get rehabilitated,” Werbel noted.

Calling his client a drug addict who “would rob a hotel, get a little bit of cash, bought drugs, and then robbed more hotels,” Werbel argued that McNulty’s “crime spree” fit the exemption in the three-strikes law for multiple convictions that did not arise from a “common scheme.” Eventually, he was able to get McNulty’s parole eligibility reinstated – 15 years late – in September 2017.

“In the abstract, three robberies sounds egregious,” admitted state Senator Scott Surovell, who nevertheless said “the way the [three-strikes] law was applied seemed to be capturing a lot of people I’m not sure it was ever aimed at.”

Under new legislation he has sponsored, the law would apply only to those who have been convicted and incarcerated at least three separate times.

“The way that this statute had been interpreted was different from the way any three-strikes statute had ever been interpreted in the history of three-strikes statutes,” Adrianne L. Bennett, chairwoman of the state parole board, said in January 2018. “The lack of due process and the subjectivity of the application of the law create an unfair and inequitable standard, in our opinion,” she added.

Bennett announced two important changes to the parole board’s policy.

First, the board will make its own determination of eligibility for exemption from the three-strikes law, rather than rubber-stamping the BOC’s classifications.

Second, the board will look only to court documents to determine if a firearm was present during a robbery. In some cases where a gun charge was absent from the final conviction, BOC investigators nevertheless counted a robbery “with a deadly weapon present” if a gun was mentioned in the arrest report.

“Searching for weapons in legal files is not appropriate,” Bennett said.

Bennett is one of several new members appointed to the parole board by Governor Terry McAuliff. The reconstituted board has granted parole to 12 of the 262 prisoners who were initially denied eligibility under the three-strikes law, which – as the Virginian-Pilot noted – has left many of them in prison longer on robbery convictions than other offenders have served for murder. According to Bennett, the parole board plans to reach out to the other 250 prisoners denied parole so they can reapply.

In May 2018, the first of the dozen three-strike prisoners granted parole walked out of the Deerfield Correctional Center. Haneef Rashe’d was known as Floyd Rainey when he was convicted of multiple robberies and sentenced under the three-strikes law.

“I’m almost 70 now,” he said. “I just got to make sure that I watch my step.”

“It’s heartbreaking, and the injustice of it just smacks you in the face,” remarked attorney April Wimberley, who represented Rashe’d. “Here are guys who made stupid mistakes. Yes, but they didn’t hurt anyone. Not a scratch. And they have to watch rapists and murderers go free before them. And I think there’s no one out there who would say, ‘Yes, that makes sense, that’s the way it should be.’ And yet, there it is.”

Virginia Delegate Marcus Simon, a former Army prosecutor, called the previous interpretation of the state’s three-strikes law a “legal gimmick” that required change.

“It sells [to voters], and it’s a gimmick, but that’s not a good way to make policy,” he said. 

Sources: Virginian-Pilot, Daily Press


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