Can a Virginia judge credit a prisoner's in-prison kitchen or janitorial work against their court fines and costs?

Subject

Whether a Virginia circuit court may credit an inmate's in-prison work (kitchen, janitorial, etc.) against the inmate's outstanding fines and costs, when that work is not performed under any of the six work programs specifically listed in Virginia Code § 19.2-354(C)(ii).

Plain-English summary

Virginia Code § 19.2-354(C) requires courts to establish a program allowing offenders to discharge fines and costs by earning credits for community service work. Before 2020, the statute only credited community service done "before or after imprisonment," not during. In 2020, the General Assembly amended the statute to add "during imprisonment" as eligible service, but limited the eligible work to six specific programs.

Judge Doucette wrote to AG Miyares because he was regularly receiving letters from inmates seeking credit for routine in-prison work (kitchen duty, janitorial work) against their fines and costs. The inmates argued that they should be credited at the difference between their actual pay (well below minimum wage) and the minimum wage. The judge already suspected this was not what the statute allowed, but wanted formal guidance.

AG Miyares agreed with the judge. Even setting aside the threshold question of whether routine in-prison work qualifies as "community service work" at all (which is debatable; Black's Law Dictionary defines community service as work "performed without pay," and these inmates receive some compensation), the work does not qualify for fines and costs credits because it is not performed under any of the six listed programs:

1. Section 19.2-316.4 (Community Corrections Alternative Program)
2. Section 53.1-59 (prisoner public works projects)
3. Section 53.1-60 (state work release programs)
4. Section 53.1-128 (local prisoner workforces)
5. Section 53.1-129 (prisoner work by judicial order)
6. Section 53.1-131 (local work release programs)

The statutory drafting strongly implies the General Assembly intended this to be an exclusive list. Under the maxim expressio unius est exclusio alterius (the mention of one is the exclusion of others), the express listing of six programs forecloses credit for work done under other programs or no program at all. Most routine in-prison work happens outside these programs; for example, kitchen duty and janitorial work are typically not work-release, public works, or community corrections alternative work.

The AG also noted that inmates performing in-prison work receive other benefits: pay (modest), earned sentence credits, and good conduct allowances under § 53.1-32.1. The opinion is not saying their work is unrecognized, only that it does not produce additional credit against fines and costs.

The opinion is direct authority for circuit court judges receiving inmate petitions for fines-and-costs credit. Without a credible showing that the work was performed in one of the six listed programs, the petition must be denied.

What this means for you

If you are a Virginia inmate

The opinion holds that routine in-prison assignments (kitchen, janitorial, and similar work) do not earn credits against fines and costs unless performed under one of the six programs listed in § 19.2-354(C)(ii). It notes that inmates performing such work remain eligible for earned sentence credits and good conduct allowances under § 53.1-32.1, which are separate from fines-and-costs credits and not affected by the opinion. The opinion does not address other ways fines and costs might be discharged.

If you are a Virginia judge

The opinion concludes that a court may not credit in-prison work against fines and costs unless the work was performed under one of the six listed programs. It frames the analysis in two steps: a threshold question of whether remunerated institutional work even qualifies as "community service work" (which it leaves undecided), and the controlling point that § 19.2-354(C)(ii)'s six-program list is exclusive under expressio unius.

If you are a Virginia defense attorney

The opinion holds that routine institutional work assignments do not generate fines-and-costs credit, while participation in one of the six listed programs can. It treats the program through which the work was performed as the determinative fact.

If you are DOC records staff or a community corrections officer

The opinion turns on whether work was performed under one of the six statutory programs (community corrections alternative, prisoner public works, work release, local prisoner workforce, or prisoner work by judicial order). It does not address record-keeping practices, but the eligibility line it draws runs along participation in those specific programs.

If you are a state legislator

The opinion reads the 2020 amendment of § 19.2-354(C)(ii) as a deliberate narrowing: although a bill as introduced would have allowed credit for any community service work during imprisonment, the enacted version limited credit to six named programs. The opinion treats that drafting choice as controlling under the canon that the legislature "chose, with care, the words it used."

Common questions

Q: Why doesn't routine in-prison work count for fines and costs credit?
A: Two reasons under the AG's analysis. First, "community service work" is typically defined as work "performed without pay," and inmates receive some compensation for institutional work. Second, even if the work is community service, the statute limits the credit to work performed under six specific programs, and routine institutional work usually is not done under those programs.

Q: What is the Community Corrections Alternative Program (§ 19.2-316.4)?
A: A program for offenders sentenced to certain ranges of imprisonment, offering alternatives like residential placement, day reporting, and work programs in lieu of standard incarceration. Eligible offenders complete program-defined work that can produce credits.

Q: What is prisoner work by judicial order (§ 53.1-129)?
A: Work that a court has specifically ordered the prisoner to perform, typically as part of a sentence that includes a community service component. The work has to be ordered by judicial decree, not just arise out of the inmate's regular institutional duties.

Q: How do work release programs differ from institutional work?
A: Work release programs (state under § 53.1-60, local under § 53.1-131) involve inmates leaving the institution during work hours to perform paid work in the community, returning to the facility afterwards. The work is at a real-world employer, not at the institution.

Q: Are public works projects (§ 53.1-59) what road work crews do?
A: Yes. Section 53.1-59 authorizes prisoner work crews on public works projects (state and local roads, public facilities, etc.). The work is outside the institution and serves a public purpose. Credit under § 19.2-354(C)(ii) is available for this kind of work.

Q: Can my fines and costs be discharged any other way?
A: Yes. Section 19.2-354 also allows installment payment plans, hardship reductions in some circumstances, and other discharge mechanisms. Community service credit is one option, not the only one.

Q: Does this opinion apply to local jails too?
A: The opinion specifically addresses state correctional centers. The reasoning likely applies to local jails as well, since the six-program list includes both state and local programs. Counsel should verify for any specific local jail scenario.

Background and statutory framework

The current version of Virginia Code § 19.2-354 reflects a 2020 amendment (House Bill 277 and Senate Bill 736) that expanded eligibility for fines-and-costs credit to include work performed during imprisonment. The original 2020 House Bill 277, as introduced, would have allowed credit for "any community service work" performed during imprisonment, which was a much broader proposal. The final enacted version narrowed the door to six specifically listed programs.

The narrow drafting is significant. It reflects a legislative compromise: expand the credit to in-prison work, but only for structured, identified programs that meaningfully serve community or rehabilitative purposes. Routine institutional maintenance work (kitchen, janitorial) does not fit the policy intent.

The expressio unius canon the AG applied is well-settled in Virginia statutory interpretation (Turner v. Wexler; Tate v. Ogg). When the legislature names specific items, omitted items are presumed to be excluded. The AG's reading is the natural one given the drafting history.

Several inmate cover letters cited "other jurisdictions" where credit for routine in-prison work was supposedly available. The AG's analysis forecloses that practice in Virginia. Whether other states allow it is a question of their own law; Virginia's law is what it is.

The interaction with § 53.1-32.1 is important. Inmates performing institutional work receive earned sentence credits and good conduct allowances under that statute, which reduce time served. Those are separate from fines-and-costs credits and are not affected by this opinion.

Citations and references

Statutes:

• Va. Code Ann. § 19.2-354 (fines and costs; community service credit)
• Va. Code Ann. § 19.2-316.4 (Community Corrections Alternative Program)
• Va. Code Ann. § 53.1-59 (prisoner public works)
• Va. Code Ann. § 53.1-60 (state work release)
• Va. Code Ann. § 53.1-128 (local prisoner workforce)
• Va. Code Ann. § 53.1-129 (prisoner work by judicial order)
• Va. Code Ann. § 53.1-131 (local work release)

Cases:

• Chapman v. Virginia, 68 Va. App. 131 (2017) (Court of Appeals; statutory interpretation)
• Turner v. Wexler, 244 Va. 124 (1992) (Virginia Supreme Court; expressio unius)

Legislative history:

• 2020 Va. Acts ch. 25 (House Bill 277)
• 2020 Va. Acts ch. 188 (Senate Bill 736)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/22-007-Doucette-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Jason S. Miyares
Attorney General

March 16, 2022

The Honorable Michael R. Doucette
Judge, Nelson County Circuit Court
Post Office Box 10
Lovingston, Virginia 22949

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services

Dear Judge Doucette:

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

Issue Presented

You ask whether a court may grant an inmate community service credits towards fines and costs for work the inmate performs inside a state correctional center, when such work is not performed pursuant to any of the six programs specified in Virginia Code § 19.2-354(C)(ii).

Response

It is my opinion that a court may not grant an inmate community service credits towards fines and costs for work performed inside a state correctional center, when such work is not performed pursuant to any of the six programs specified in Virginia Code § 19.2-354(C)(ii).

Background

You relate that you regularly receive letters from inmates requesting community service credits for work they have performed within a state correctional center. This work often includes duties such as janitorial or kitchen work. You state that the inmates receive pay for such work, but at a rate significantly lower than minimum wage. The inmates performing such work request that they receive credits against their fines and costs in the amount of the difference between their rate of pay and the minimum wage. You relate that, to date, none of the requests you have received relate to work that is performed pursuant to any of the six programs specified in § 19.2-354(C)(ii). Yet the inmates' cover letters attached to their petitions all mention some jurisdictions where they claim such credit is regularly extended.

You relate your view that, even if such work qualifies as "community service work," a court may not credit such work against an offender's fines and costs because it is not performed through one of the six programs specified in § 19.2-354(C)(ii).

Applicable Law and Discussion

Section 19.2-354(C) of the Code of Virginia provides that a court "shall establish a program and may provide an option to any person . . . to discharge all or part of [his or her] fine or costs by earning credits for the performance of community service work." Prior to 2020, the statute provided that only community service work performed "before or after imprisonment" could qualify for such credit. In 2020, however, bills were introduced in the General Assembly to add community service work performed "during imprisonment" as service that could qualify for credit against fines and costs. One of these bills, as introduced, proposed authorizing the extension of credit for any community service work performed during imprisonment. Ultimately, however, the legislature chose to limit the forms of community service work performed during imprisonment that may qualify for credit against fines and costs. In particular, the General Assembly passed legislation amending § 19.2-354(C)(ii) to provide that community service work performed during imprisonment may qualify to be credited against an offender's fines and costs, but only if it is performed pursuant to the programs set forth in § 19.2-316.4 (community corrections alternative program), § 53.1-59 (prisoner public works projects), § 53.1-60 (state work release programs), § 53.1-128 (local prisoner workforces), § 53.1-129 (prisoner work by judicial order), or § 53.1-131 (local work release programs).

As you indicate in your request, a threshold question exists with respect to whether the inmates' work within a state correctional center qualifies as "community service work." Community service work is typically defined as "[s]ocially valuable work performed without pay," leading to doubt about whether duties performed by inmates inside a correctional institution and remunerated in any monetary amount can be classified as community service work. In addition to monetary pay, inmates in state correctional centers who perform such work assignments are eligible to receive earned sentence credits and good conduct allowances, assuming all other applicable requirements are met. See VA. CODE ANN. § 53.1-32.1 (2013).

In my opinion, even if the inmates' work you describe does qualify as community service work, a question that is not decided here, it does not qualify to be credited against the inmates' fines and costs because it was not performed pursuant to any of the six programs specified in § 19.2-354(C)(ii). Indeed, for all practical purposes, work performed by an inmate while inside a state correctional center could not be performed under § 19.2-316.4 (community corrections alternative program), § 53.1-60 (state work release programs), § 53.1-128 (local prisoner workforces), or § 53.1-131 (local work release programs), because these programs either do not apply to inmates in state correctional centers, or do not apply to work performed inside a state correctional center. In addition, § 53.1-129 (prisoner work by judicial order) and § 53.1-59 (prisoner public works projects) appear to apply primarily, or perhaps even exclusively, to work performed outside a correctional facility.

We must assume "that the legislature chose, with care, the words it used" when amending § 19.2-354(C)(ii) and limiting the situations in which community service work performed during imprisonment may qualify to be credited against an offender's fines and costs. Further, under the maxim of expressio unius est exclusio alterius, "mention of a specific item in a statute implies that omitted items were not intended to be included within the scope of the statute." Accordingly, under the clear language of § 19.2-354(C)(ii), the inmate work that you describe does not qualify to be credited against the inmates' fines and costs.

Conclusion

For the foregoing reasons, it is my opinion that a court may not grant an inmate community service credits towards fines and costs for work performed inside a state correctional center, when such work is not performed pursuant to any of the six programs specified in Virginia Code § 19.2-354(C)(ii).

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General