When Dustin McMillan was 18, he was convicted of breaking into a convenience store – intending to rob the place. He had no criminal record, but that and related crimes carried a mandatory minimum sentence.
“The jury gave me the minimum amount of time that they could give me – 28 years: five years for robbery, three years for the gun charge and 20 years for breaking and entering with the intent to commit robbery," he recalls. ""There were three jury members crying at sentencing and conviction.”
McMillan pleaded for a pardon from Governors Ralph Northam and Glenn Youngkin. Both turned him down. The Mid-Atlantic Innocence Project said that without new evidence, there was nothing they could do.
So McMillan made the most of his situation. His mother, Elizabeth Arbogast, keeps a scrap book of the poems he’s written and the certificates he’s earned.
"Plumbing, carpenter, electrician," she says with pride. "He did the newspaper for the prison. He worked in the library. He helped people with lawyers. He’s helped a lot of them to graduate and to be something, and his roommate is elderly and ill. He takes care of him.”
Then came word of a new program in which inmates could get 15 days off their sentence for every 30 days they had served if they had a clean prison record and took classes to improve their chances of a crime-free life on release, On June 2nd, McMillan found out he was eligible when he met with his counselor.
“She said, ‘How soon can you get me a home plan?’ And I said, ‘I’m going home?’ She said, ‘July first!” My unit manager said, ‘Don’t you cry! Don’t you cry!’ And I said, ‘I’m trying not to.'”
He filled out papers, had a medical exam and waited.
“I was having a lot of anxiety. I just couldn’t believe it. It was like winning the lottery and not having the check in hand,” he explains.
He would get up early and work on plans for a business, building on the skills he’d refined in prison. During 23 years behind bars, McMillan finished his high school degree and was known for designing and building large, elaborate toy robots. He also intended to do things for friends and family.
“I needed to help my mom fix her place up. I have a friend whose place is falling apart. I wanted to fix that up. I love building things, and I love helping, and I feel absolutely helpless and useless in here.”
His family planned a big party and was relieved that McMillan wanted to help care for his uncle who has diabetes and needs dialysis three times a week. It’s a job that now falls to McMillan’s Aunt, Dixie Waugh.
“I have to bathe him. I shave him, I do everything for him, and then I still work 40 hours a week, because I need the insurance," Waugh says. "I could really use some help.”
His uncle, Danny Waugh, was also excited.
“I was just counting the days until he was going to be home.”
But four days before his release, McMillan met with a counselor who delivered some shocking news.
“Courts and legal sent an e-mail and said that there was an error, and you will not be going home on Monday. For them to just take hope away from me like that, I was just devastated.”
He would have to serve three more years, because Virginia considers breaking and entering with intent to rob a violent crime, and sentences for violent crimes were not eligible for the expanded good time program.
“Nobody in DOC called to tell my family that I wasn’t coming home – that they had made a mistake. There was no apology.”
So McMillan was forced to deliver the unhappy news to relatives.
“He called, and his voice was low," his mother remembers. "He said, ‘Mom, I’m not coming home,’ and I said, ‘Come on! Stop joking. We’re all ready. Me and your sisters are going to be up there Monday morning early. We’re arguing about clothes – getting you clothes. “No, Mom, stop! I’m telling you. They came in and told me that it is a mistake. They made a mistake. I’ve already gotten my shots – everything they told me to do. I’m not lying Mom.’ And then he started crying.”
“They don’t know what they’ve done," says McMillan's Aunt Dixie. "They don’t realize they just ripped our hearts out.”
Taj Mahon-Haft is co-founder of a group called the Humanization Project which advocates for justice reform. He said the state should have been more careful.
“They did a lot in a short period of time, so I don’t think it was malicious, but I think that it was hurried and not careful enough considering the importance of the circumstances. An offer, a promise of freedom should never be taken back. That is a measure twice, cut once scenario.”
Mahon-Haft says the last-minute decision not to free Dustin McMillan was cruel, and his mother says her son feels lost.
“He’s depressed. He’s sleeping all the time. He calls me almost every day, and you hear his voice, you can feel his pain.”
He can’t understand why politicians who pledge fiscal responsibility would make such an expensive decision for taxpayers.
“It costs the state between $30,000-$80,000 depending on your medical condition to keep you incarcerated," he explains. "After 23 years in prison – more than $1.6 million to keep me incarcerated, I am so ready to be a contributing member of society," he adds — his voice catching as he holds back tears. "You know the things that people dread doing -- I long for the day when I have to pay bills.”
He’s not eligible for parole, since his crime was committed just after Virginia abolished it, but the Humanization Project says the governor could and should issue a conditional pardon and allow Dustin McMillan to go home.
