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Appeals court rejects inmates' parole lawsuit

Tuesday - 7/10/2012, 3:30am  ET

By LARRY O'DELL
Associated Press

RICHMOND, Va. (AP) - A federal appeals court refused Monday to revive a lawsuit by 11 Virginia inmates who claim prisoners convicted of violent offenses are being illegally denied parole.

In a 2-1 ruling, a panel of the 4th U.S. Circuit Court of Appeals rejected the inmates' allegation that the Virginia Parole Board has failed to give fair and meaningful consideration to the approximately 6,000 prisoners who remain eligible for early release because they were convicted before parole was abolished in 1995.

The plaintiffs claim that the board's own policy manual requires it to consider 14 factors, including an inmate's rehabilitation and conduct in prison, but the board has been routinely denying parole for one reason: the serious nature of the crime.

However, the appeals court majority said the inmates' own statistics undercut their argument. Although the board paroled only 2.1 percent to 3.7 percent of eligible violent offenders between 2002 and 2008, that's still 120 to 230 inmates per year returned to the streets. And only 45 percent of the parole denials were based solely on the seriousness of the offense.

"These facts indicate that the Board was making individual determinations with respect to violent offenders," Judge Henry F. Floyd wrote in the majority opinion, which Judge Paul V. Niemeyer joined.

Even when the board only cites the seriousness of the crime, the court said, one cannot assume that it did not consider other factors as well.

The court acknowledged that the parole grant rate fell from about 40 percent before abolition to as low as 5 percent in 2008, but suggested that could just mean the board is exercising its discretion to take "a stricter view towards violent offenders than it had in the past."

After parole was abolished, the board made sweeping changes to its operating procedures. It discontinued use of a risk-assessment tool, stopped meeting face- to-face with inmates and ceased meeting in person, instead circulating an inmate's file before voting electronically to grant or deny parole. Since 2002, the board has also met less frequently with inmates' families.

Judge Roger Gregory wrote in a dissenting opinion that these changes "strongly suggest the Board has systematically eliminated the procedures that would have furnished it with information beyond the nature and circumstances of the underlying offense." He said the inmates made a plausible claim that the board violated their due process rights by failing to conduct a broader review.

Stephen A. Northup, an attorney for the inmates, was traveling Monday and said he had not yet read the opinions.

"It's very disappointing," he said of the outcome. "We're going to have to consider what to do."

His clients could ask for a hearing before the full appeals court or appeal to the U.S. Supreme Court.

The attorney general's office, which represented the parole board, did not immediately respond to a request for comment.

When the case was argued in March, state Solicitor General Duncan Getchell said inmates are entitled only to consideration of parole and a reason for denial.

The appeals court's ruling affirmed U.S. District Judge Robert Payne's 2010 decision to dismiss the lawsuit.

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Follow Larry O'Dell on Twitter: http://twitter.com/LarryOatAP


(Copyright 2012 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)