The ACLU of Virginia claims the state’s corrections department is “over-detaining a significant number of people” as a result of earned sentence credits being improperly applied to individuals’ sentences.
The civil rights group — which in a December 17th, 2025, letter asked for the Virginia Department of Corrections to “conform with the law” — has sued VDOC over the issue four times since 2022. In two of those cases, the state Supreme Court ruled that the incarcerated plaintiff should be released early.
State code defines two tiers of earned sentence credits — ESC-1 and ESC-2; each are calculated and applied differently. In the first tier, people convicted of certain felonies are eligible to be credited 4.5 days for every 30 days served. For ESC-2, which the majority of people incarcerated for nonviolent crimes are eligible for, credits can accrue at a higher rate, depending on how their behavior’s perceived by VDOC staff.
Most credits can also be rescinded if an individual violates “any written prison rules or regulations.”
The ACLU of Virginia's letter said that instead of beginning to accrue immediately after conviction, the days start being counted on “an arbitrary date, not defined or provided for by law.” Geri Greenspan, an ACLU of Virginia attorney, maintained that the corrections department has displayed a pattern of starting the clock later than it should.
“The sort of bigger issue is that the General Assembly writes the laws and VADOC has to follow them,” Greenspan said. “Where the law is clear, it doesn't matter what VDOC's policy preference is; they have to follow the law.”
Kyle Gibson, VDOC’s communications lead, didn’t respond to a request for comment.
The credits were expanded in 2020 through state legislation, though the new regime wasn’t implemented until 2024 after being blocked by Governor Glenn Younkin through a budget amendment. Attorney General Jason Miyares weighed in on the issue at the time, writing a letter to lawmakers that warned against recidivism risks — despite VDOC regularly highlighting its relatively low rate of reincarceration.
“Cutting sentences for violent crime, especially in cases identified as a high risk for recidivism, is having a detrimental impact on public safety throughout Virginia,” Miyares wrote in the February 2024 letter. “Aggressive sentence reductions for violent criminals and those with high risk for recidivism disregards past and future victims. Allowing such a practice is not justice, and it’s not safe.”
The ACLU of Virginia’s recent letter doesn’t mention potential legal action, and Greenspan said she wouldn't comment on whether the organization is planning to file suit. The note did ask for a response from VADOC by January 2nd — which Greenspan said she hadn’t received.
“We are hoping that the department, the Attorney General's office — either this administration or the next one — is willing to engage with us on this issue and see if we can resolve it without any sort of protracted litigation,” she said.
This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.