June 25, 2020

Early Release from Prison in Virginia

Early Release from Prison in Virginia

Virginia Passes Law to Release People from Prison: Conditions and Exceptions Apply

In response to COVID-19, Virginia passed a law allowing the release of people in custody of the Department of Corrections (DOC). While this budget amendment does allow for the release of additional people from DOC during the pandemic, it is not necessarily all that the media makes it out to be. So, what exactly does it do?

This new law gives the Director of Corrections the authority to release or place into a lower supervision level anyone with less than a year of their sentence remaining to be served, but only if the Director determines that (1) the release “will assist in maintaining the health, safety, and welfare” of the person released or the other persons in state prisons, AND (2) the release is “compatible with the interests of society and public safety.”[i]

Essentially, the Director of Corrections has complete control over who will get released and who will not, but the Director has at least issued further guidance as to how this legislation will be implemented by DOC. The Director’s “Early Release Plan” lays out specific limitations, conditions, and priorities as to who will be released.

Before the plan addresses those specifics, it states that the DOC has the necessary resources to protect its population from the virus, despite the fact that DOC has already reported numerous confirmed cases as well as COVID-19 deaths in Virginia DOC facilities.

The Early Release Plan goes on to set out the following criteria for release:

  1. Release date must be calculated and verified.
  2. Person’s medical condition will be considered.
  3. Consideration will be based on seriousness of the current offense as follows:
    1. Non-violent
    2. Felony weapons
    3. Involuntary manslaughter
    4. Voluntary manslaughter
    5. Robbery
    6. Felony Assault
    7. Abduction
    8. Murder
    9. Sex offense
  4. Person must have documented approved home plan.
  5. Current good time earning level of I or II.
  6. No active detainers.
  7. No Sexually Violent Predator predicate offenses.
  8. Low or medium recidivism risk. 

The Early Release Plan includes procedures for implementation, re-entry planning, and appeal regarding the application of the plan.

Thus far, few people have been released under this new law, but the authority remains in place throughout the duration of the public health emergency. You may want to consult with a Virginia criminal defense attorney if you think you or a loved one may be eligible for release under this provision or if you want to appeal an adverse decision as to the application of the Director’s plan.

Let us provide you advice, both legal and practical, to help you protect your loved one as much as possible under difficult circumstances such as these. Contact the Criminal Law attorneys at The Irving Law Firm today to help coordinate services for your family.


[i]V.1. Notwithstanding any other provision of law, upon the declaration by the Governor of a state of emergency pursuant to § 44-146.17 of the Code of Virginia in response to a communicable disease of public health threat as defined in § 44-146.16 of the Code of Virginia, the Director shall, during the duration of the declared emergency, have the authority to (i) discharge from incarceration or (ii) place into a lower level of supervision, including probation supervision, home electronic incarceration, or other forms of community corrections, any prisoner committed to the Department who has less than one year of his sentence remaining to be served prior to his scheduled release if the Director determines that (a) any such discharge or placement during the declared emergency will assist in maintaining the health, safety, and welfare of any prisoner discharged or placed or the prisoners remaining in state correctional facilities and (b) any such discharge or placement is compatible with the interests of society and public safety.

  1. The provisions of this section shall not apply to a prisoner convicted of a Class 1 felony or a sexually violent offense as defined in § 37.2-900of the Code of Virginia. 
  2. The Director shall develop procedures for implementing the provisions of this section which shall include provisions addressing reentry planning in accordance with § 53.1-32.2of the Code of Virginia.  To the extent practicable, the Director shall comply with all provisions of the Virginia Code relating to providing notice of a prisoner’s discharge; however, any failure to comply with such notice provisions shall not affect the Director’s authority to discharge a prisoner pursuant to this section.
  3. The provisions of this section shall expire on July 1, 2021.”



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