ANALYSIS OF OCTOBER 12, 2023 SUPREME COURT OPINION

(Posted October 12, 2023) For the first time in 2½ months, the Supreme Court of Virginia hands down a published opinion today. Let’s see if my analysis skills have gotten rusty.

Anderson v. Clarke is a habeas corpus appeal by a prison inmate in Albemarle County. He claims that the Director of Corrections – that’s Mr. Clarke – has erroneously calculated the number of earned sentence credits that he has on account, and that he’s entitled to immediate release. A circuit court disagreed, and the justices agreed to review the case.

This appeal relates to two recent changes in the statute governing these credits, which you and I may know as “time off for good behavior.” From the time his sentence began in 2013 until 2021, Anderson was entitled to 4½ days of credit for each 30 days he served – assuming that good behavior, of course.

In 2021, the General Assembly amended the statute to liberalize the number of credits available. An inmate in Anderson’s position could earn up to 15 days of credit for each 30 days served. Perhaps more important, the legislature made the change retroactive. For someone who’d been in the Big House for eight years of a 13-year sentence (as Anderson was), that’s a lot of time off.

One important proviso stood between Anderson and immediate release. The 2021 act came in a special session, and the legislature specified an effective date for the change of July 1, 2022. That meant that succor was still a tantalizing year away.

Fate intervened in the form of the 2021 statewide elections. Those swept Republicans into the Governor’s Mansion and into control of the House of Delegates. As part of the budget process in the 2022 general session, the newly constituted legislature amended the earned-sentence-credit statute to restrict eligibility for the more liberal calculus. Inmates serving time for certain classes of serious crimes would not get the bumped-up credit; they were restricted to the previous slower pace. This legislation, too, had an effective date of July 1, 2022.

Anderson had been convicted of four crimes, and one of those was in the restricted category. The director accordingly limited his credit calculus to 4½ days per month. Anderson felt wronged and turned to the courts.

The Supreme Court today analyzes the claim and concludes that the circuit court got it right. Anderson argued that he was entitled to that retroactive credit up to the effective date of the 2022 budget; but the court rules that because the two bills had the same effective date, the earlier provision never kicked in for him. The 2022 legislature effectively took away what the 2021 legislature had offered him. Because he never had an “active” right to the larger credit – just an inchoate one – he didn’t lose a property right. The justices accordingly affirm. Justice Russell pens the opinion for a unanimous court.

This appeal was one of five cases on the September argument docket. It comes down swiftly, just four weeks after the “May it please the court ….”