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Help RIHD End the Trend of Mass Incarceration in Virginia
by Correcting Two (2) Egregious and Systemic Sentence Errors

In 1994 Virginia passed laws abolishing parole for all
persons convicted of nonviolent and violent crimes committed
on or after January 1, 1995, allowing only for geriatric release
for a particular class of offenders over the age of sixty or
sixty-five. When these laws came into effect in 1995, the court
rules at the time prohibited judges from instructing juries in
non-capital cases that the defendant would not be entitled to
parole if sentenced to a term of incarceration, even in cases
where the board requested to know whether the offender
would be allowed to probation. Consequently, juries that
convicted offenders in the months and years following the
abolition of parole were not instructed by judges that parole
had been abolished; thus, they imposed sentences under
the erroneous impression that the offender would serve
only a fraction of the sentence. It was not until June 2000, in
the case of Fishback v. Commonwealth, 260 Va. 104, 532 S.E.
2d 629 (2000), that the Virginia Supreme Court ruled that judges
must instruct jurors in all non-capital cases that parole
has been abolished. In reaching its decision, the
Supreme Court confirmed what had long been evident to
observers of Virginia criminal justice system: that instructing
juries who will impose a sentence that parole has been
abolished would ensure a fair trial for both the offender
and the Commonwealth. Sadly, however, the Supreme Court
declined to make its Fishback ruling retroactive, meaning that
those offenders whose convictions had become final before the
ruling would not be entitled to new sentencing by a jury
that is correctly instructed on the abolition of parole.

Two decades later, while many of those affected have
completed their sentences, there are still some who remain
behind bars without any remedy and who are serving sentences
far beyond what the jury intended. The actual number of those
affected who remain behind bars is over 300, yet how many
they are should not be a factor or a relevant inquiry because,
even if only one man or woman is languishing in prison based
on this injustice, we hold it right that “injustice to one is an
injustice to all.”

Indeed, what should matter to us all is whether it is just and moral to let these men and women continue to languish in
our prisons, knowing that they were unfairly sentenced.

If we reach the logical conclusion that it is unjust and moral
to do so, then the inquiry is: what is the fair and
just remedy?

RIHD Talking Points for Remedy: Legislation which provides in part remedy that:
June 9, 2000, Virginia Appellate Court started Fishback
"it simply defies reason not to give jurors the information that parole was abolished"  
“that instructing jury who will impose a sentence that parole has been abolished would ensure a fair trial for both the offender and the Commonwealth.”

2019 Proposed Legislation: SB1437 Parole Eligibility (Fishback) 
Patron: Senator Jennifer McClellan(D) Senate District 9

“All presently incarcerated persons convicted and sentenced
by a jury on or after January 1, 1995, and before the
Fishback decision, Provides that a person is entitled to
parole who was sentenced by a jury before the date of the
Supreme Court of Virginia decision in Fishback
v. Commonwealth, 260 Va. 104 (June 9, 2000), in which the Court held that the jury should be instructed on the fact that parole has been abolished, for a non-capital felony committed after the time that the abolition of parole went into effect (January 1, 1995). The bill also allows a presentence report to be made available for review without a court order to incarcerated persons who are eligible for release by the Virginia Parole Board, or to such person's counsel.”  

Senator Jennifer McClellan (D)
Senate District 9 
Pocahontas Building, 
Room E512 
900 East Main Street
Richmond, VA 23219 
(804) 698-7509
 email:  [email protected]


1.  Va General Assembly:
2.  Who’s my State Legislator:
3.  How to track Va Legislation:
4.  How Bills Become Law:
5.  Tips for Testifying:

From A Life Term To Life On The Outside: When Aging Felons Are Freed
Convicts in Md. released early by a landmark ruling haven't re-offended.   Karriem Saleem El-Amin of Baltimore is one of the more than 130 prisoners serving life sentences for violent crimes who were released on probation following a landmark ruling by Maryland's highest court.
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Defendants in Virginia are getting trapped by harsh sentencing and denied the right to a fair appeal.
Take Kevin Key a first-time offender convicted a drug offense with the intent to distribute. Sentencing guidelines by Office of Probation and Parole recommended Alternative Sentence and no more than 2 years and 2 days of incarceration.  Instead, he was sentenced to 31 years with no written explanation why over-sentenced per the required Sentencing Guideline Subsection B  law to do so (shall).

Because Virginia abolished parole, he won’t get out until 2027. His family lives in California and can’t afford to visit him because they have drained their bank accounts for legal expenses.

Kevin Key’s case is not unique. In more than 3000 documented cases between 2010 and 2013 (1) judges provided no written reason for exceeding sentencing guidelines -- even though they are required to do so by law (Va. Code § 19.2-298.01). What’s worse, Virginia law does not allow this to form the basis of post-conviction relief or be reviewable on appeal.

The purpose of a proposed amendment is to eliminate disparity and achieve consistency and fairness in sentencing by allowing appellate review of the decision of a judge to depart from the sentencing guidelines recommendations. The amendment will also prevent judges from justifying their departure on the basis of factors that have already been considered in calculating the guidelines. A common practice that is so inherently unfair and unjust. More importantly, the amendment will provide a review remedy for presently incarcerated persons whose sentences exceeds the guidelines recommendation.

The Virginia legislature has the power to change this. We need you to tell your legislators to amend the Virginia Sentencing Guideline Provision F Code for post-conviction relief be "reviewable on appeal" when Judges are in noncompliance of the Sentence Guideline Subsection laws, AND Retroact "special circumstance" parole eligibility determined by the defendant's original sealed sentence recommendation.

(1) 1995-2006 & 2014 to current; estimated 10,000 plus additional sentencing guideline disparity cases. 



It pleases RIHD to announce the passing and approval by Virginia Governor Northam (2018-03-30) for the Acts of Assembly;  2018 Legislation HB1055 Discretionary Sentencing guidelines Subsection B; judicial performance evaluation program, report.

VA Judicial Departure Report


Delegate Charniele L. Herring, D 
City of Alexandria (part) - 46th District
PO Box 11779
Alexandria,  VA 22312 
Email Address: 
[email protected]