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

Subject

Whether work done inside a state correctional center may be credited toward an inmate's fines and costs when it was not performed under one of the six programs listed in § 19.2-354(C)(ii).

Plain-English summary

A circuit judge asked whether inmates could receive credit against fines and costs for paid janitorial, kitchen, or similar work inside a state correctional center. The judge said the requests before him did not involve any of the six work programs named in § 19.2-354(C)(ii). The Attorney General answered that a court may not grant credit for that work in the stated circumstances.

The statute allows courts to offer credit for community service work. A 2020 amendment added some work performed during imprisonment, but limited that work to six named programs: the community corrections alternative program, prisoner public works, state work release, local prisoner workforces, prisoner work by judicial order, and local work release. The AG read that list as excluding work done outside those programs.

The opinion leaves one question open: whether the paid work inside the center is "community service work" at all. The AG concluded that, even assuming it is, it cannot be credited here because it was not performed under a listed program. The opinion does not set an evidentiary burden for an inmate petition or decide every form of institutional work.

What this means for you

Inmates and advocates: The described paid kitchen and janitorial work did not qualify for credit against fines and costs because it was outside the six listed programs. The opinion notes that inmates performing such work may separately be eligible for earned sentence credits and good conduct allowances if other requirements are met.

Judges and court staff: The AG's answer is limited to work inside a state correctional center that was not performed under a listed program. It gives no rule about what proof would establish participation in one of those programs.

Common questions

Why did the AG reject credit for the work in the judge's question?

The 2020 amendment permits qualifying work during imprisonment only when it is performed under one of six programs listed in § 19.2-354(C)(ii). The judge's examples were outside all six.

Did the AG decide whether paid work can count as community service?

No. The opinion says that question remains undecided because the work fails the separate requirement that it be performed under a listed program.

What are the six programs?

The opinion lists the community corrections alternative program (§ 19.2-316.4), prisoner public works (§ 53.1-59), state work release (§ 53.1-60), local prisoner workforces (§ 53.1-128), prisoner work by judicial order (§ 53.1-129), and local work release (§ 53.1-131).

Does the opinion prescribe a burden of proof for inmates seeking credit?

No. It answers the judge's question on the stated fact that none of the work was performed under a listed program.

Background and statutory framework

Before 2020, § 19.2-354(C) referred to community service before or after imprisonment. The General Assembly added work during imprisonment but confined eligibility to the six programs it named. The AG invoked the rule that naming specific items in a statute implies omitted items were not included. On the facts provided, routine paid work inside the state facility was outside the statutory list.

Citations and references

• Va. Code § 19.2-354(C)(ii)
• Va. Code §§ 19.2-316.4, 53.1-59, 53.1-60, 53.1-128, 53.1-129, 53.1-131
• Va. Code § 53.1-32.1

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