After Virginia abolished the death penalty in 2021, what happens to the two inmates already on death row? Does the Department of Corrections automatically convert their sentences to life, or does a court have to act?

Subject

Following the abolishment of the death penalty, the Virginia Department of Corrections is required to administratively recalculate the sentences of the two inmates in question to reflect life imprisonment.

Plain-English summary

In 2021, the Virginia General Assembly passed 2021 Va. Acts cc. 344 and 345 (Special Session I), which abolished the death penalty in Virginia. The law took effect July 1, 2021. Beyond banning new death sentences, the statute directly addressed inmates who were already on death row: it provided that any person "under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment." Those inmates, if they were 18 or older at the time of the offense, are not eligible for parole, good-conduct allowances, earned sentence credits, or conditional release under § 53.1-40.01 or § 53.1-40.02.

That left a practical question for Harold Clarke, then Director of the Department of Corrections. Virginia had two inmates under death sentences as of July 1, 2021. Does the Department just convert the sentences administratively, or does a court need to enter an order? Director Clarke asked the Attorney General a chain of six related questions, each contingent on the answer to the previous one (if courts have to act, do they act on their own initiative, do inmates need lawyers, and so on).

The Attorney General gave a direct answer: the statute is self-executing. The phrase "shall have his sentence changed to life imprisonment" doesn't ask any court to do anything. It says the sentence is changed by operation of law. So the Department of Corrections is required to recalculate the sentences administratively. Because that resolves the first question, the rest of the chain falls away.

What this means for you

For the Virginia Department of Corrections

The opinion holds that no court order is required to convert the sentence of an inmate who was under a death sentence on July 1, 2021; the statute changes the sentence to life imprisonment by operation of law, and the Department is required to recalculate it administratively. Under the statute, the two affected inmates (if 18 or older at the time of the offense) are ineligible for parole, good-conduct allowances and earned sentence credits under Chapter 6 of Title 53.1, and conditional release under § 53.1-40.01 or § 53.1-40.02. The opinion adds that once an inmate is in its custody, the Department has wide authority to classify and house inmates under §§ 53.1-20 and 53.1-24.

For criminal defense attorneys representing those inmates

The opinion holds that no court order is needed to convert the sentence; the death-to-life change is self-executing. It resolves only that mechanism and does not address whether any other relief might be available collaterally.

For prosecutors

The opinion holds that no action by the Commonwealth is required to effectuate the conversion; because the change is self-executing, the prosecutor's role is unnecessary.

For families of the affected inmates

The opinion holds that the sentence becomes life imprisonment by operation of law, carrying the statutory bars to parole, sentence credits, and conditional release for those who were 18 or older at the time of the offense, and that the Department of Corrections, not the courts, makes the change.

For courts that originally imposed the death sentence

The opinion holds that no court action is required because the statute is self-executing under Hudson v. Youell, 179 Va. 442 (1942); the sentence is changed by operation of law rather than by court order.

Common questions

Did Virginia really abolish the death penalty?
Yes. 2021 Va. Acts cc. 344 and 345 (Special Session I), effective July 1, 2021. Virginia was the first Southern state to abolish capital punishment.

What happened to people who were already on death row?
Their sentences were converted to life imprisonment by operation of law as of July 1, 2021. The Department of Corrections handles the administrative bookkeeping. No new court order is required.

What does "self-executing" mean?
A statute is self-executing when its provisions take effect on their own terms, without needing further action from a court or other body. The AG cited Hudson v. Youell, 179 Va. 442 (1942), which held that a former Virginia statute requiring consecutive sentences was self-executing.

Are these inmates eligible for parole?
No, if they were 18 or older at the time of the offense. The 2021 statute strips eligibility for parole, good conduct allowances or earned sentence credits under Chapter 6 of Title 53.1, and conditional release under § 53.1-40.01 or § 53.1-40.02.

What about an inmate who was under 18 at the time of the offense?
The 2021 statute writes the parole bar narrowly to apply to those who were 18 or older at the time of the offense. If an affected death-row inmate was a juvenile at the time of the offense, the parole/good-conduct/conditional-release bars in this statute would not apply. The AG opinion did not address whether other parole bars apply.

Does the inmate need a court-appointed lawyer to make this happen?
No. Because the conversion is automatic, the chain of questions about court action and counsel falls away.

Background and statutory framework

The 2021 abolition statute (Acts 344 and 345, Special Session I) sits in a tradition of Virginia statutes that change the sentencing landscape by operation of law. The Attorney General relied on the Virginia Supreme Court's approach in Hudson v. Youell, 179 Va. 442, 449-50 (1942), which interpreted former Code § 4786 as self-executing where it provided that confinement on a later conviction "shall commence at the termination of the previous term or terms of confinement." That phrasing, like the 2021 abolition statute, told the sentence what it was; no court intervention was needed.

Once an inmate is in DOC custody, the Director has broad authority to classify and house. Section 53.1-20 lets the Director assign housing as the Department determines best, and § 53.1-24 requires the Director to maintain a register of each prisoner's confinement. The AG cites Hewitt v. Helms, 459 U.S. 460 (1983), Meachum v. Fano, 427 U.S. 215 (1976), and Gaston v. Taylor, 946 F.2d 340 (4th Cir. 1991), all federal cases recognizing wide deference to corrections officials on classification and housing.

The opinion is, in form, an answer to question 1 of Director Clarke's six-question chain. Because the answer is yes (the Department is required to recalculate), questions 2 through 6 are moot.

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 53.1-20 (DOC custody and classification)
• Va. Code § 53.1-24 (register of prisoner terms)
• Va. Code § 53.1-40.01; § 53.1-40.02 (conditional release)
• Va. Code § 53.1-186 et seq. (good conduct allowance, earned sentence credits)
• 2021 Va. Acts cc. 344, 345 (Special Session I) (death penalty abolition)
• Hudson v. Youell, 179 Va. 442 (1942)
• Gray v. Va. Sec'y of Transp., 276 Va. 93 (2008)
• Hewitt v. Helms, 459 U.S. 460 (1983)
• Sandin v. Conner, 515 U.S. 472 (1995)
• Meachum v. Fano, 427 U.S. 215 (1976)
• Gaston v. Taylor, 946 F.2d 340 (4th Cir. 1991)
• 1991 Op. Va. Att'y Gen. 144

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/21-026-Clarke-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120

November 19, 2021

Harold W. Clarke, Director
Virginia Department of Corrections
Post Office Box 26963
Richmond, Virginia 23261

Dear Director Clarke:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

Your inquiry relates to the law, recently passed during Special Session I of the 2021 General Assembly, that abolishes the death penalty in the Commonwealth. In addition to prohibiting any new sentence of death in the Commonwealth, the law prohibits the execution of any person who was under a sentence of death as of the law's effective date on July 1, 2021. In particular, the law states:

That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 (§ 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to §[§] 53.1-40.01 or 53.1-40.02 of the Code of Virginia.

In your request, you state that the Virginia Department of Corrections (the "Department") currently has custody of two inmates who are under a sentence of death imposed prior to July 1, 2021. You ask the following series of questions about application of the law with respect to these inmates:

1) Is the law's mandate that a person under sentence of death on July 1, 2021 "shall have his sentence changed to life imprisonment" self-executing, such that the Department is required to administratively recalculate the inmates' sentences?

2) If the Department is not required to administratively recalculate the inmates' sentences, is the Department permitted to do so?

3) If the Department is not required or permitted to administratively recalculate the inmates' sentences, do the sentencing courts, or any other court, have jurisdiction to modify the sentences?

4) If a court has jurisdiction to modify the sentencing, is that court required to take action on its own initiative, or must a party place the matter before the court for it to be heard?

5) If a party must place the matter before a court in order to effectuate the law, is the inmate the only party with the authority to do that, or do other entities, such as a Commonwealth's Attorney's office or the Office of the Attorney General, also have that authority?

6) Is each inmate entitled to appointed counsel for the purpose of bringing his case before a court of competent jurisdiction to effectuate this provision of law?

Applicable Law and Discussion

The distinguishing characteristic of fully self-executing terms is that no further action is required to make them effective. The new law states that an inmate subject to the stated terms "shall have his sentence changed to life imprisonment." This language does not call for further action on the part of a sentencing court, or any other court; but instead specifically directs what the new sentence is to be, namely, life imprisonment. In Hudson v. Youell, the Supreme Court of Virginia considered statutory language from former § 4786 that read as follows: "When any person is convicted of two or more offenses, before sentence is pronounced for either, the confinement to which he may be sentenced upon the second, or any subsequent conviction, shall commence at the termination of the previous term or terms of confinement." The Court found this language to be clearly self-executing in imposing consecutive terms of punishment upon Hudson, even if the sentencing court had failed to declare the terms of imprisonment consecutive. Similarly, the present language directs that "any person under a sentence of death . . . shall have his sentence changed to life imprisonment." Because no further action is needed by a sentencing court or any other court to make the language effective, it is clearly self-executing.

Once an inmate is properly committed to the custody of the Department, the Department has wide authority, and discretion, to classify and house inmates as it determines will best serve the needs of the inmates and of its institutions. Those decisions do not depend on any further finding needed by any other body. Because the paragraphs at issue express a clear legislative intent that all described sentences of death shall be changed to life sentences, without requiring any further adjudication or allowing any other modification, the Department, as the custodian of inmates sentenced to death, is required to administratively recalculate such sentences in reliance on that mandate.

Given that the Department is required to administratively recalculate each inmate's sentence, the remainder of your questions are rendered moot for purposes of this request.

Conclusion

Accordingly, it is my opinion that the language of the law is self-executing and no further action is needed by a sentencing court, or any other court, to carry it into effect. The Virginia Department of Corrections is therefore required to administratively recalculate the sentences of the two inmates in question to reflect life imprisonment, according to the provisions of the law.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General