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Virginia Sentencing Commission debates 'possibly unconstitutional’ post-release system


Virginia doesn’t have parole in a traditional sense, but it does offer post-release supervision. And changes in the state code have mixed up who has authority over those released when they violate the terms of that supervision. Some judges are worried the confusion could violate the constitution. Brad Kutner had more from Richmond.

A meeting of the Sentencing Commission this month led to complex questions about the state’s delegation of authority for managing the formerly incarcerated. At issue was the use of the parole board, an executive-branch agency, to punish folks who violate the terms of their post incarceration-supervised release. The board is given minimal information about the subject of supervision, and they ask the courts to issue a warrant for the violator’s arrest, but then it's the agency itself deciding the punishment.

That mixing of authorities could mean the person subject to the warrant may not be getting a fair access to the legal system.

“They’re arresting someone on behalf of a different branch of government where there’s not going to be no hearing in the courts, it raises a concern,” Sentencing Commission member and Virginia Court of Appeals judge Robert Humphreys told Radio IQ.

Among those who could speak to the issue is Shawn Waneta. He was arrested for embezzlement and was serving time before being pardoned by former Governor Ralph Northam. He now works with the Humanization project, advocating for criminal justice reform.

“Its’ anywhere from six months to three years and nobody’s really clear who's responsible for you,” he said of post release supervision. Waneta was watching the sentencing commission meeting remotely and said he was speaking with other stakeholders when the issue was realized.

"Everybody agrees this should go into the court's hands," he said, noting even members of the parole board appeared ready to return the authority back to the courts.

Senator Russet Perry, a 10-year-veteran prosecutor, is one of the two legislative members of the commission. She wasn’t around when changes made by the General Assembly lead to this confusion, but she understands the problem. For clarity, a capias is like a warrant.

“If the courts issuing the capias for a potential violation, why is the parole board adjudicating it, they also raise concerns about how much information they have to try to adjudicate something that was imposed upon the individual by the court," Perry said. "So, isn't the court in the best position to be adjudicating these things anyway?”

Judge Humphreys said Virginia isn’t alone in having executive-branch agencies handle post-release supervision, so there’s likely a due process-friendly fix to be found. Perry herself volunteered to find that fix ahead of the 2025 General Assembly session.

This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.

Brad Kutner is Radio IQ's reporter in Richmond.