ANALYSIS OF JULY 6, 2023 SUPREME COURT OPINION

(Posted July 6, 2023) Today we mark the passing of two of history’s most famous lawyers. Thomas More was executed on this date in 1535 after having offended Henry VIII once too often; and Chief Justice of the United States John Marshall of Virginia passed away exactly 300 years later, in 1835.

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The Supreme Court of Virginia hands down a single published opinion this morning. Prease v. Clarke is a habeas corpus case invoking the Supreme Court’s original jurisdiction.

Prease has been a prisoner since his 2013 conviction for attempted aggravated murder. He received a lengthy prison sentence, but most of that was suspended, giving him 14 years of active prison time.

This appeal is about a Department of Corrections policy that allows prisoners to accumulate good-behavior credits during their time in custody. The General Assembly modified the policy recently, expanding the credit that certain prisoners may earn.

Concerned that the new statute wasn’t clear, the Department asked then-Attorney General Mark Herring for an opinion on whether certain offenses, including those for which Prease had been sentenced, qualified for the expanded credit. A month before leaving office in the wake of the 2021 general election, the AG opined that those offenses did qualify for the credit.

But as soon as current AG Jason Miyares took office, the Department asked him to reconsider his predecessor’s conclusion. Miyares obliged and reported in April 2022 that the offenses involved here did not qualify.

But before that opinion came down, the Department, relying on Herring’s opinion, told Prease in March 2022 to get ready for release, indicating an end date for his imprisonment of July or August of 2022. When the new opinion dropped, the Department backed off, telling Prease that his earliest release date would be in June 2024.

In October 2022, Prease filed this petition, asking for immediate release. Today the justices grant the requested writ and direct the Director to release him. The statutory analysis isn’t complex, and candidly it isn’t the most interesting part of today’s opinion, which Justice Powell pens for a unanimous Supreme Court. I found the political backstory fascinating, with a Republican AG issuing an opinion that’s more consistent with a tough-on-crime policy, countermanding a Democratic AG’s earlier view.