Chair Edwards, Chair Deeds and Honorable Members of the Committee,

My name is Sarah Wall and I am the government affairs manager for the Northeast and Mid-Atlantic regions at R Street Institute (R Street). R Street is a nonprofit, nonpartisan public policy research organization focused on advancing limited, effective government in many policy areas, including criminal justice reform. Our Criminal Justice & Civil Liberties team researches and offers public policy solutions to a variety of state and federal issues, including police reform, reentry and reducing the impacts of overcriminalization in past decades.

R Street would like to offer informational comments on the potential outcomes of SB 378, known as a “second look” policy that would allow a judge to consider modifying the sentence of an incarcerated person after 10 years (if the person was 25 years old or younger when convicted) or 15 years (if the person was 26 years old or older when convicted) of incarceration. There are several provisions that must be in place for modification to be considered, including good conduct time or earned sentence credits and the avoidance of disciplinary offenses. The legislation also establishes a hearing process in which the judge would consider testimony from the defense attorney, prosecuting attorney, the victim if applicable and any community members interested in testifying. These safeguards would create a balanced process in which a judge can weigh the evidence in light of new circumstances to ensure incarceration continues to be in the best interest of the Commonwealth.

In general, second look policies help ensure the appropriate allocation of taxpayer resources. From 2015 to 2019, costs of housing inmates in Virginia prisons ballooned, from just over $21,000 to nearly $32,000 per year per inmate. [1] In total, the Commonwealth spends $1.4 billion annually on its prison systems. [2] With such costs, it is incumbent upon Virginia legislators to consider whether these resources are being allocated in fiscally reasonable ways that improve public safety for all Virginians. With second look policies in place, if a judge determines there is ample evidence that an incarcerated person has been rehabilitated, it is in the public’s best interest for the person to be released.

When done thoughtfully and with the full input of the judicial system, second look policies do not put public safety at risk. This is not only because the hearing process builds safeguards into the system, but also because, as research consistently shows, incidence of crime declines with age. According to research, crimes from drug arrests to violent crime peak when individuals are between their late teens and early 20s, and over half of offenders are arrested before they turn 30 years old. [3] Research from Families Against Mandatory Minimums (FAMM) echoed these findings, concluding that of those convicted of violent crimes, 96 percent of those released between age 45 and 54, and 99 percent of those 55 and older, did not reoffend within three years of release. [4] Legal experts recommend, therefore, that courts take a second look at incarcerated individuals’ circumstances once they are “past the peak” of criminality: after 10 years for young people and after 15 years for adults, as Senate Bill 378 proposes. [5]

Virginia is not the first to consider enacting second look policies into law. State legislators in 25 states, including West Virginia and Florida, have introduced similar initiatives in the past five years. [6] At the federal level, a Senate package known as the First Step Implementation Act of 2021 contains a version of second look and has bipartisan support, having been sponsored by Sen. Dick Durbin (D-Ill.) and Sen. Chuck Grassley (R-Iowa) and receiving a bipartisan 13-9 vote out of the Senate Judiciary Committee. [7]

Criminal justice policies work best as a precision laser rather than a blunt instrument. Second look policies ensure incarceration is utilized for those who require it and avoided for those who do not, thus providing that laser-focused precision. When defense attorneys, prosecutors, victims and community members can present evidence concerning the continued incarceration of an individual who has served 10 or 15 years depending on initial circumstances, judges have an opportunity to consider whether incarceration is indeed upholding public safety, fiscal responsibility and rehabilitation. Regardless of the judge’s ultimate decision, giving incarcerated people an opportunity to receive new consideration 10 to 15 years after their conviction is policy that is well-grounded in research and that aligns with reform movements in other states. Thank you for your consideration.

Respectfully submitted,

Sarah Wall
Government Affairs Region Manager
R Street Institute
[email protected]

[1] “Prison spending in 2015,” Vera, 2015. https://www.vera.org/publications/price-of-prisons-2015-state-spending-trends/price-of-prisons-2015-state-spending-trends/price-of-prisons-2015-state-spending-trends-prison-spending; WFXRtv.com Digital Desk, “Costs to house inmates in Virginia on the rise,” WFXR Fox, Nov. 7, 2019. https://www.wfxrtv.com/news/costs-to-house-inmates-in-virginia-on-the-rise.

[2] “Tell Lawmakers to Give Rehabilitated People a Second Chance,” American Civil Liberties Union (ACLU) of Virginia, 2022. https://action.aclu.org/send-message/va-pass-second-look.

[3] Dana Goldstein, “Too Old to Commit Crime?” The Marshall Project, March 1, 2015. https://www.themarshallproject.org/2015/03/20/too-old-to-commit-crime.

[4] “The Older You Get: Why Incarcerating the Elderly Makes Us Less Safe,” Families Against Mandatory Minimums (FAMM), last accessed Feb. 3, 2022. https://famm.org/wp-content/uploads/Aging-out-of-crime-FINAL.pdf.

[5] Nazgol Ghandnoosh, “A Second Look at Injustice,” The Sentencing Project, May 21, 2021. https://www.sentencingproject.org/publications/a-second-look-at-injustice.

[6] Ibid

[7] “Senate Judiciary Committee Advances Two Bipartisan Durbin, Grassley Criminal Justice Bills,” Senator Chuck Grassley, June 10, 2021. https://www.grassley.senate.gov/news/news-releases/senate-judiciary-committee-advances-two-bipartisan-durbin-grassley-criminal-justice-bills.