In 1995, Virginia eliminated parole. On the positive side, that provided truth in sentencing and certainty for victims, especially for those of violent crime. On the negative side, it removed our ability to remedy overly harsh sentences that proved to be outliers and recognize that human beings are capable of remarkable transformation. While our intentions were good, we could not foresee that there would be dramatic Supreme Court rulings with regard to juveniles sentenced to life without parole.
In Graham v. Florida, the Supreme Court ruled that a juvenile sentenced as an adult to life without parole is unconstitutional and that these young people require a meaningful and realistic opportunity at release if they can demonstrate maturity and rehabilitation. The Supreme Court of Virginia ruled that geriatric parole at the age of 60 met the requirements of this Graham ruling. On its face, this was an unfortunate ruling and it was overturned in the U.S. District Court for the Eastern District of Virginia. The Virginia attorney general is appealing this ruling. There are many other appeals by young people sentenced to life who want relief based on this U.S. Supreme Court ruling.
Another instance of life-without-parole sentences involving juveniles charged with homicide was Miller v. Alabama. It was initially ruled that mitigating circumstances must be considered before a sentence of life without parole can be handed down. Since a juvenile with a capitol offense in Virginia can only have one sentence under state law, which is life without parole, sentencing hearings were superfluous. However, the U.S. Supreme Court in Montgomery v. Louisiana ruled that all juveniles sentenced to life without parole for murder should at some time be eligible for parole, or have a re-hearing as juveniles are redeemable and that life without parole is unconstitutional without this safeguard. Mr. Montgomery was 72 years old at the time of this ruling and had been in jail since his teen years.
Because of these Supreme Court rulings, case appeals are beginning to be filed. The only alternative that the Virginia Supreme Court has at its disposal are rehearings, which would be difficult after a long passage of time since the offense and would be devastating to victims. The better path is for the Virginia legislature to do its job as implied by these Supreme Court rulings and establish parole eligibility after 20 years or more of these sentences has been served. This does not mean that they would be released but that they would have an opportunity at release by being made parole eligible.
Exceptions to parole are difficult for our legislature, our Association of Commonwealth Attorneys, and for our victims to accept as it appears to be a broken promise under the current “no parole” law. However, the U.S. Supreme Court has spoken, and we are obliged to follow its rulings. Some have suggested that gubernatorial pardons would be a satisfactory remedy. However, an envelope containing a pardon request need not even be opened by the governor under Virginia law. Pardons are part of a highly politicized process that is inconsistent with sound criminal justice legal practice.
In the General Assembly next year, 2017, we must take action, as many of our sister states have. Resistance to our own U.S.Supreme Court’s rulings is a troubling path that places Virginia in a very unfavorable light. These individuals may not appear to deserve a second chance based on the crimes they committed but in the eyes of the Supreme Court they are entitled to justice and due process as the court defines it. I agree.
Dave Marsden, a Democrat, represents Fairfax in the Virginia Senate.