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August 16, 2022

Attorneys File Habeas Petition on Behalf of Antoine Anderson

Today, the ACLU of Virginia filed Anderson v. Clarke in the Albemarle County Circuit Court, challenging the continued incarceration of Antoine Anderson and demanding his immediate release from Virginia Department of Corrections (VDOC) custody. The petition for a writ of habeas corpus asserts that VDOC officials wrongly interpreted the Governor’s Amendment 19 to the 2022 Budget Bill to apply retroactively, negating the sentence credits earned by Mr. Anderson prior to the budget going into effect.

Mr. Anderson and hundreds of other incarcerated people who earned sentence reductions through good behavior and rehabilitation were told at the last minute that their promised release would not be honored. “How can you grant freedom to someone and then just take it away like someone’s life doesn’t matter?” said Niya Anderson, Mr. Anderson’s daughter, was looking forward to seeing her father outside of prison for the first time. “When I learned that my dad was not coming home after he was told he was coming home early, I was devastated. It truly does hurt and it’s truly heartbreaking, and I truly don’t know how to deal with this news, especially because he was supposed to take me to college this fall, and now that’s not happening.”

In 2020, Virginia’s General Assembly partially restored incentives for good behavior in prison that had been rolled back in a wave of draconian sentencing changes during the “tough-on-crime" era of the mid-1990s. The 2020 law, H.B. 5148, made many incarcerated Virginians eligible to earn increased sentence reductions, except for certain specific feloniesThe law went into effect on July 1, 2022, with the General Assembly explicitly applying the law retroactively, so that those currently incarcerated would have the benefit of increased earned sentence credits.

“By passing H.B. 5148 and explicitly making it retroactive, the General Assembly took an important step to provide incarcerated people greater incentives to pursue opportunities for growth and personal improvement, and to reward those who had already done so.” said Geri Greenspan, ACLU of Virginia staff attorney.

In June of 2022, Governor Youngkin proposed, and the General Assembly approved, an amendment to the Budget Bill that made people ineligible for the increased sentence credits on any part of their sentence, even for crimes that are eligible, if they had served any time for a conviction that is ineligible for expanded credits under the statute. Unlike H.B. 5148, the budget amendment contained no language specifying that it be applied retroactively, and it was adopted as part of a forward-looking Budget Bill directing the Commonwealth’s appropriation of funds from July 1, 2022, until June 30, 2024.

Despite this, VDOC interpreted the provision to apply retroactively, canceling out the credits Mr. Anderson and others like him had earned prior to July 1, 2022. This resulted in delayed release dates for hundreds of people who had been told they were returning home to their family, friends, and community. Because the budget amendment should never have been applied retroactively to revoke sentence credits already earned, the ACLU of Virginia’s petition on Mr. Anderson’s behalf calls for his immediate release.

"We hope our petition on behalf of Mr. Anderson encourages other attorneys to bring similar petitions on behalf of the hundreds of others who were denied their rightful earned sentence credits," said Vishal Agraharkar, ACLU of Virginia senior staff attorney. "But VDOC does not need to wait for these suits to be resolved. They can and should recalculate the release dates of all people eligible for enhanced earned sentence credits under H.B. 5148 for time served prior to July 1, and release people as soon as warranted.”

“What the Governor did was unjust because you had people’s hopes up,” said Mr. Anderson. “You had hundreds of people and family members looking forward to the release of loved ones. When we were told we were not going home, it broke down our mental state. It made us feel like we were never going to leave. We served our time, and we deserve to have a second chance. We are not the same people we were when we entered prison.”

This is the second case filed on behalf of an incarcerated person who was told he’d be released and then wasn’t. On August 9, attorney Elliott Harding of Harding Counsel, PLLC filed a petition in the Circuit Court for the City of Richmond making the same argument.