Are conspiracy, attempt, or accomplice-liability convictions for serious crimes excluded from Virginia's enhanced earned sentence credits, the same as the underlying offenses?

Subject

How Virginia's enhanced earned sentence credit framework (House Bill 5148, effective July 1, 2022) treats inchoate offenses (conspiracy, attempt, solicitation) and accomplice liability for crimes that are excluded from the enhanced credit schedule.

Plain-English summary

The General Assembly enacted House Bill 5148 in the 2020 Special Session to create a new earned sentence credit schedule. Effective July 1, 2022, most Virginia inmates can earn enhanced credits (up to 15 days per 30 served, depending on level) for time served. The new schedule does not apply to a list of serious offenses in § 53.1-202.3(A), which are capped at 4.5 sentence credits per 30 days. The excluded offenses include Class 1 felonies, certain murders, malicious wounding, sex offenses, abduction with intent to defile, and similar serious crimes.

DOC Director Clarke asked AG Miyares to reconsider a December 2021 opinion (21-068) that had addressed four questions about HB 5148, and the AG amended portions of the prior opinion.

The four questions and the AG's answers:

1. Are inchoate offenses (conspiracy, attempt, solicitation) and accomplice liability (accessory before the fact, principal in the second degree) excluded from enhanced credits, the same as completed offenses? Yes. The statute lists "[s]olicitation to commit murder" alongside completed murder offenses; reading "any felony violation" narrowly would create an irrational result (solicitation of murder excluded but conspiracy or attempt of the same murder eligible). Plus § 18.2-18 makes accomplices liable as principals. So all inchoate and accomplice forms of the listed offenses are excluded.

2. Is aggravated murder excluded, even though § 53.1-202.3 does not name § 18.2-31 specifically? Yes. Aggravated murder is a Class 1 felony (§ 18.2-31), and § 53.1-202.3(A)(1) excludes any Class 1 felony. Solicitation, attempt, conspiracy, and accomplice forms of aggravated murder are also excluded by the same reasoning as Question 1.

3. Does § 53.1-202.3(A)(10), which excludes "criminal sexual assault punishable as a felony under Article 7," include § 18.2-67.5 (felony attempted rape, forcible sodomy, object sexual penetration, aggravated sexual battery)? Yes. Section 18.2-67.5 is within Article 7 of Chapter 4 of Title 18.2, so felony violations are within the exclusion.

4. Does the second-offense exclusion in § 53.1-202.3(A)(17)(e) apply when the FIRST offense was a malicious (not unlawful) wounding? And does § 18.2-92 second-offense exclusion apply when the prior conviction was § 18.2-90? No on both. The statute's plain language is specific: subsection (e) requires that the wounding be "done unlawfully but not maliciously"; a prior malicious wounding does not fit. Subsection (g) lists only § 18.2-89 or § 18.2-92 as triggering prior convictions for the § 18.2-92 second-offense rule; § 18.2-90 is not listed. Inmates with these specific prior-offense patterns ARE eligible for enhanced credits.

The AG flagged that the conclusions on Question 4 represent "a poor policy outcome" and invited the General Assembly to review the statute.

What this means for you

If you are a Virginia inmate or family member

The opinion holds that the § 53.1-202.3(A) carve-outs reach inchoate and accomplice forms of the listed offenses, so a conviction for conspiracy, attempt, solicitation, accessory before the fact, or principal in the second degree to a listed crime remains at the 4.5-credits-per-30-days rate rather than the enhanced rate. It also holds two narrow exceptions: a current unlawful (not malicious) wounding with a prior malicious wounding does not fall within the (A)(17)(e) second-offense exclusion, and a § 18.2-92 conviction with only a prior § 18.2-90 conviction does not fall within (A)(17)(g). The opinion states those convictions "would be eligible for enhanced earned sentence credits."

If you are a Virginia criminal defense attorney

The opinion holds that "any felony violation" in § 53.1-202.3(A) reaches conspiracy, attempt, solicitation, and accomplice liability for the listed offenses, so the inchoate or accomplice form is treated the same as the completed offense for credit eligibility. It holds the opposite for the two second-offense scenarios in Question 4, where it reads the more specific subsection text to leave the convictions eligible for enhanced credits.

If you are a Virginia prosecutor

The opinion concludes that the enhanced-credit exclusions are not avoided by an inchoate or accomplice form of a listed offense, because the AG reads "any felony violation" to include them. For the two Question 4 scenarios, the opinion reaches the narrower textual result: those second-offense convictions remain eligible for enhanced credits.

If you are DOC records staff

The opinion answers four questions about how the exclusions apply:

• Inchoate offenses (conspiracy, attempt, solicitation) of listed crimes: excluded.
• Accomplice forms (accessory before the fact, principal in the second degree) of listed crimes: excluded.
• Aggravated murder and its inchoate/accomplice forms: excluded as a Class 1 felony.
• Felony violations of § 18.2-67.5: excluded under (A)(10).
• Unlawful wounding with a prior malicious wounding: NOT excluded under (A)(17)(e).
• Section 18.2-92 with only a prior § 18.2-90: NOT excluded under (A)(17)(g).

The opinion supersedes the prior 21-068 opinion to the extent of any inconsistency.

If you are a state legislator

The opinion holds that, under the plain text, the two Question 4 scenarios leave the convictions eligible for enhanced credits, and the AG states "the conclusions with respect to Question 4 represent a poor policy outcome, and I would encourage further review by the General Assembly." The opinion does not propose specific amendment language.

Common questions

Q: What is the difference between "regular" and "enhanced" earned sentence credits in Virginia?
A: The 2020 Special Session legislation (HB 5148) created two tiers. Inmates with convictions on the § 53.1-202.3(A) list earn up to 4.5 sentence credits per 30 days served (the "regular" or old rate). Inmates with other convictions earn enhanced credits, which can be up to 15 days per 30 days served at the highest level.

Q: Does this opinion apply retroactively to inmates already serving sentences?
A: The enhanced credits framework applies prospectively from July 1, 2022, but the credits are calculated over the entire sentence. So inmates already serving sentences as of that date are evaluated under the new framework going forward.

Q: What if my conviction was for solicitation to commit a non-listed offense?
A: The AG's analysis applies to convictions for inchoate forms of listed offenses. Solicitation, conspiracy, or attempt of a non-listed offense is not excluded. The structural rule is that inchoate offenses follow the credit-eligibility status of the underlying offense.

Q: How does the prior 2021 opinion (21-068) relate to this one?
A: This 2022 opinion supersedes 21-068 to the extent of inconsistency. The two opinions reach different conclusions on some points, so any pre-2022 analysis based on 21-068 should be re-checked against this opinion.

Q: What is "accomplice liability" or "principal in the second degree"?
A: An accomplice is someone who aided, abetted, or encouraged the commission of a crime, without being the actual perpetrator. Section 18.2-18 makes such accomplices liable as principals for felony offenses. The AG's analysis means an accomplice to murder, for example, is treated the same as the principal murderer for sentencing credit purposes.

Q: Are the credits applied to fines or only to sentences?
A: Earned sentence credits reduce the time served, not fines or court costs. A separate community service credit system addresses fines and costs (see opinion 22-007 for that analysis).

Background and statutory framework

House Bill 5148 (2020 Special Session) was a significant reform of Virginia's earned sentence credit system. The pre-existing system was uniform at 4.5 credits per 30 days. HB 5148 created a tiered system with up to 15 days per 30 days for many offenses, but preserved 4.5 days per 30 for a long list of serious offenses in § 53.1-202.3(A).

The drafting of § 53.1-202.3(A) used a mix of approaches:

• Some subdivisions name specific Code sections.
• Others use general categories ("Class 1 felony," "criminal sexual assault punishable as a felony under Article 7").
• Some use the formula "any felony violation of [section]."
• The subsection (17) second-offense provisions use highly specific lists.

This drafting variation creates interpretive questions, which is why DOC Director Clarke requested AG guidance both in late 2021 (21-068) and again in early 2022 (22-008). The AG's reading favors broad inclusion of inchoate and accomplice forms of listed offenses, consistent with the apparent legislative purpose, but adheres to the plain text for the more specifically drafted second-offense provisions.

The "poor policy outcome" footnote on Question 4 is rare AG opinion phrasing. AGs typically describe their analysis without offering policy commentary on the result. Miyares's note signals that the second-offense provisions may have been drafted imprecisely and that the General Assembly should reconsider.

Citations and references

Statutes:

• Va. Code Ann. § 53.1-202.3 (earned sentence credits)
• Va. Code Ann. § 18.2-18 (accomplice liability)
• Va. Code Ann. § 18.2-31 (aggravated murder)

Cases:

• VEPCO v. Citizens for Safe Power, 222 Va. 866 (1981) (avoiding irrational consequences)

Prior AG opinion superseded in part:

• 2021 Op. Va. Att'y Gen. No. 21-068 (December 21, 2021)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/22-008-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

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services

April 13, 2022

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 opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You have asked that I reconsider an opinion of this office issued to you on December 21, 2021. That opinion dealt with four questions regarding House Bill 5148, which was passed by the General Assembly in its 2020 Special Session to provide for a new earned sentence credit rate schedule, effective July 1, 2022. This new earned sentence credit rate schedule provides for enhanced earned sentence credits for offenses that are not excluded under the language of the bill. Your questions relate to the offenses that are excluded from the new earned sentence credit rate schedule.

Specifically, you have asked:

1. "When considering the language 'any felony violation,' does this include the completed act, as well as the other offense modifiers: Conspiracy, Attempts, Solicit, Solicit Juvenile to Commit, Accessory Before the Fact and Principal 2nd Degree?"

2. "If the above modifiers are also excluded from earning the enhanced earned sentence credits, is there language in the legislation excluding the modifiers for Aggravated Murder since § 53.1-202.3 does not specifically list § 18.2-31?"

3. "Does § 53.1-202.3(A)(10), by legal definition, include § 18.2-67.5 (Felony Attempted Rape, Forcible Sodomy, Object Sexual Penetration, Aggravated Sexual Battery)?"

4. "In § 53.1-202.3(A)(17), a second or subsequent violation of § 18.2-51 or § 18.2-51.1 while such person was at liberty, would be excluded from the enhanced earned sentence credits. However, would such exclusion apply if the first violation of § 18.2-51 or § 18.2-51.1 was a malicious felonious assault? In the same way, in § 53.1-202.3(A)(17)(g) would § 18.2-92 be excluded if the offender was previously convicted of violating § 18.2-90?"

I have reconsidered the prior opinion and now provide the following analysis, which in part amends the earlier opinion and addresses certain issues that were omitted.

I note that as a member of the General Assembly, I voted against this legislation.

Applicable Law

The bill in question, House Bill 5148, establishes a new earned sentence credit rate schedule but sets out certain offenses that will be excluded from the new schedule and therefore ineligible for enhanced earned sentence credits. Under the language of the bill, the excluded offenses will be limited to "[a] maximum of 4.5 sentence credits . . . for each 30 days served." The provisions of the bill pertaining to the excluded offenses will be codified in Virginia Code § 53.1-202.3(A). Effective July 1, 2022, the subsection will read as follows, in relevant part:

A maximum of 4.5 sentence credits may be earned for each 30 days served on a sentence for a conviction for any offense of:

1. A Class 1 felony;

2. Solicitation to commit murder under § 18.2-29 or any violation of § 18.2-32, 18.2-32.1, 18.2-32.2, or 18.2-33;

[. . .]

A second or subsequent violation of the following offenses, in any combination, when such offenses were not part of a common act, transaction, or scheme and such person has been at liberty as defined in § 53.1-151 between each conviction:

a. Any felony violation of § 3.2-6571;

[. . .]

e. Any violation of § 18.2-51 when done unlawfully but not maliciously, § 18.2-51.1 when done unlawfully but not maliciously, or § 18.2-54.1 or 18.2-54.2;

[. . .]

g. Any violation of § 18.2-89 or 18.2-92[.]

For the sake of simplicity, I will refer to this subsection as "§ 53.1-202.3(A)," as if it were currently codified.

Discussion/Analysis

Question One

As I understand your first question, you ask: (1) whether the language "any felony violation" in § 53.1-202.3(A) includes convictions for conspiracy, attempt, or solicitation to commit the listed crimes, and (2) whether the language "any felony violation" in § 53.1-202.3(A) includes convictions for acting as an accessory before the fact or a principal in the second degree in the commission of the listed crimes.

Section 53.1-202.3(A) does not explicitly state whether convictions for conspiracy, attempt, or solicitation are included in the term "any felony violation." Nevertheless, the language of the subsection indicates that the term "any felony violation" is intended to include such convictions. Subdivision (A)(2) lists "[s]olicitation to commit murder under § 18.2-29 or any violation of § 18.2-32, 18.2-32.1, 18.2-32.2, or 18.2-33" as included within its scope. To read the term "any violation of" in this subdivision as referring to only the completed crime would lead to the irrational conclusion that the General Assembly intended to make solicitation to commit murder ineligible for enhanced sentence credits, yet leave convictions for conspiracies or actual attempts to commit murder eligible for enhanced sentence credits. Courts will give a statute a "reasonable . . . interpretation consistent with its apparent purpose and [legislative intent]," and will avoid an interpretation that leads to irrational results. Accordingly, I conclude that convictions for conspiracy, attempt, or solicitation are included in the language "any felony violation" in § 53.1-202.3(A).

Convictions for acting as an accessory before the fact or as a principal in the second degree are also included in the language "any felony violation." Section 18.2-18 of the Code provides generally that "[i]n the case of every felony, every principal in the second degree and every accessory before the fact may be indicted, tried, convicted and punished in all respects as if a principal in the first degree." Therefore, such accomplices bear the same liability as their principal. It follows that convictions for acting as an accessory before the fact or as a principal in the second degree to crimes listed after the terms "any felony violation" in § 53.1-202.3(A) fall within the scope of that subsection and are therefore excluded from eligibility for enhanced sentence credits.

Question Two

I understand your second question to be whether § 53.1-202.3(A) applies to convictions for aggravated murder, and if so, whether it also applies to convictions for conspiracy, attempt, or solicitation to commit aggravated murder; or to convictions for commission of aggravated murder as an accessory before the fact or a principal in the second degree.

Aggravated murder is classified as a Class 1 Felony. Because § 53.1-202.3(A) includes any "Class 1 Felony," aggravated murder is included in the scope of the subsection, even though it is not explicitly named as such.

As mentioned above, § 53.1-202.3(A) explicitly provides that "solicitation to commit murder" is included in the scope of the subsection. "Solicitation to commit murder" by definition includes "solicitation to commit aggravated murder." Therefore, solicitation to commit aggravated murder is included in the scope of § 53.1-202.3(A). Further, consistent with the analysis set forth in "Question One" above with respect to § 53.1-202.3(A)(2), any conviction for attempt or conspiracy to commit aggravated murder is likewise included in the scope of the subsection, making these offenses ineligible for enhanced earned sentence credits.

As discussed earlier, § 18.2-18 of the Code provides generally that in the case of every felony, an individual who is convicted of acting as an accessory before the fact or a principal in the second degree bears the same liability as their principal. Thus, an individual who is convicted of such accomplice liability in an aggravated murder is generally convicted of aggravated murder itself. While § 18.2-18 sets out certain exceptions whereby such an accomplice shall be convicted of first degree murder rather than aggravated murder, first degree murder is also included in the scope of § 53.1-202.3(A). Therefore, any conviction for acting as an accessory before the fact or a principal in the second degree to an aggravated murder falls within the scope of § 53.1-202.3(A).

Question Three

You next ask whether § 53.1-202.3(A)(10) includes, by legal definition, § 18.2-67.5, which establishes criminal penalties for attempted rape, forcible sodomy, object sexual penetration, or aggravated sexual battery. Section 53.1-202.3(A)(10) includes convictions for "[c]riminal sexual assault punishable as a felony under Article 7 . . . of Chapter 4 of Title 18.2," which includes § 18.2-67.5. In my opinion, based on the reasoning set forth in "Question One" above, and consistent with apparent legislative intent, § 53.1-202.3(A)(10) includes all felony convictions of § 18.2-67.5, making them ineligible for enhanced earned sentence credits.

Question Four

Your final question is whether § 53.1-202.3(A)(17)(e) would apply to a second offense conviction of § 18.2-51 or § 18.2-51.1, where the first offense was committed maliciously. Relatedly, you ask whether a conviction for a violation of § 18.2-92 would fall within the scope of § 53.1-202.3(A)(17)(g) if the offender was previously convicted of violating § 18.2-90.

Based on the plain language of the provision, a conviction for a second offense of § 18.2-51 or § 18.2-51.1 would not fall under the scope of § 53.1-202.3(A)(17)(e) where the first offense was committed maliciously. Likewise, a conviction for violating § 18.2-92, where the offender was only previously convicted of violating § 18.2-90, would not fall within the scope of § 53.1-202.3(A)(17)(g).

Conclusion

For the foregoing reasons, it is my opinion that:

1. Convictions for conspiracy, attempt, or solicitation are included in the language "any felony violation" in § 53.1-202.3(A), making such convictions of the listed crimes ineligible for enhanced earned sentence credits. Convictions for acting as an accessory before the fact or as a principal in the second degree to these same crimes also fall within the scope of that subsection and are excluded from eligibility for enhanced earned sentence credits.

2. Section 53.1-202.3(A) includes convictions for aggravated murder, and also convictions for solicitation, conspiracy, or attempt to commit aggravated murder. Further, any conviction for acting as an accessory before the fact or a principal in the second degree to an aggravated murder falls within the scope of § 53.1-202.3(A), making such convictions ineligible for enhanced earned sentence credits.

3. Convictions for felony violations of § 18.2-67.5 are included in the scope of § 53.1-202.3(A)(10) and are therefore ineligible for enhanced earned sentence credits.

4. A conviction for a second offense of § 18.2-51 or § 18.2-51.1 would not fall under the scope of § 53.1-202.3(A)(17)(e) where the first offense was committed maliciously. Likewise, a conviction for violating § 18.2-92, where the offender was only previously convicted of violating § 18.2-90, would not fall within the scope of § 53.1-202.3(A)(17)(g). As such, those convictions would be eligible for enhanced earned sentence credits. In my view, the conclusions with respect to Question 4 represent a poor policy outcome, and I would encourage further review by the General Assembly.

To the extent the analysis in the prior opinion is inconsistent with this above analysis, the prior opinion is hereby superseded.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General