Chapter 1. Administration Generally.

Article 1. General Provisions.

§ 53.1-1. Definitions.

As used in this title, unless the context requires a different meaning:

“Board” or “State Board” means the State Board of Local and Regional Jails.

“Community correctional facility” means any group home, halfway house or other physically unrestricting facility used for the housing, treatment or care of adult offenders established or operated with funds appropriated to the Department of Corrections from the state treasury and maintained or operated by any political subdivision, combination of political subdivisions or privately operated agency within the Commonwealth.

“Community supervision” means probation, parole, postrelease supervision, programs authorized under the Comprehensive Community Corrections Act for local responsible offenders, and programs authorized under Article 7 (§ 53.1-128 et seq.) of Chapter 3.

“Correctional officer” means a duly sworn employee of the Department of Corrections whose normal duties relate to maintaining immediate control, supervision and custody of prisoners confined in any state correctional facility.

“Department” means the Department of Corrections.

“Deputy sheriff” means a duly sworn officer appointed by a sheriff pursuant to § 15.2-1603 whose normal duties include, but are not limited to, maintaining immediate control, supervision and custody of prisoners confined in any local correctional facility and may include those duties of a jail officer.

“Director” means the Director of the Department of Corrections.

“Jail officer” means a duly sworn employee of a local correctional facility, except for deputy sheriffs, whose normal duties relate to maintaining immediate control, supervision and custody of prisoners confined in any local correctional facility. This definition in no way limits any authority otherwise granted to a duly sworn deputy sheriff whose duties may include those of a jail officer.

“Local correctional facility” means any jail, jail farm or other place used for the detention or incarceration of adult offenders, excluding a lock-up, which is owned, maintained, or operated by any political subdivision or combination of political subdivisions of the Commonwealth. For the purposes of subsection B of § 53.1-68 and §§ 53.1-69 , 53.1-69 .1, and 53.1-127 , “local correctional facility” also includes any facility owned, maintained, or operated by any political subdivision or combination of political subdivisions of the Commonwealth that is used for the detention or incarceration of people pursuant to a contract or third-party contract with the federal government or any agency or contractor thereof.

“Lock-up” means a facility whose primary use is to detain persons for a short period of time as determined by the Board.

“State correctional facility” means any correctional center or correctional field unit used for the incarceration of adult offenders established and operated by the Department of Corrections, or operated under contract pursuant to § 53.1-262 . This term shall include “penitentiary” whenever used in this title or other titles of the Code.

History. Code 1950, §§ 53-9, 53-19.5, 53-19.18, 53-19.18:1, 53-19.23; 1966, c. 300; 1970, c. 648; 1974, cc. 44, 45; 1976, cc. 740, 756; 1977, c. 187; 1981, c. 487; 1982, c. 636; 1983, c. 477; 1991, c. 383; 1995, c. 224; 1999, c. 845; 2000, c. 807; 2020, c. 759; 2020, Sp. Sess. I, c. 23.

Cross references.

As to the purchase of products and services from state correctional facilities, see § 2.2-1116 .

As to the powers and duties of the Department of Criminal Justice Services and the Criminal Justice Services Board, see § 9.1-102 .

As to the Line of Duty Act, see § 9.1-400 et seq.

As to disarming a law-enforcement or correctional officer and penalty involved, see § 18.2-57.02 .

As to penalty for bribery by jail officers in correctional facilities, see § 18.2-474.2

Editor’s note.

At its regular session of 1980, the General Assembly directed the Code Commission to make a study of Title 53 and report its findings to the Governor and General Assembly in the form of a recodification of that title. In January of 1982, the Commission sent to the Governor and General Assembly its report containing a proposed revision of Title 53. This report, which was published as Senate Document No. 19 of the 1982 Session, contains reviser’s notes and other explanatory matter which, while valuable, are too lengthy for inclusion here. The Commission’s draft of the revision of Title 53, as amended by the General Assembly, became c. 636 of the Acts of 1982. It repeals Title 53 of the Code and enacts in lieu thereof a new Title 53.1.

In addition to its revision by c. 636, former Title 53 was amended by certain other acts passed at the 1982 Session. As required by § 30-152 and Acts 1982, c. 636, cl. 7, these amendments have been incorporated into new Title 53.1.

Some of the cases cited in the notes under the various sections of this title were decided under corresponding provisions of former Title 53 and earlier statutes.

Acts 1982, c. 636, clauses 2, 3, 4, and 7, provide as follows:

“2. That whenever any of the conditions, requirements, provisions or contents of any section, article or chapter of Title 53 or any other title of this Code as such titles existed prior to July 1, 1982, are transferred in the same or modified form to a new section, article or chapter of this title or any other title of this Code and whenever any such former section, article or chapter is given a new number in this or any other title, all references to any such former section, article or chapter of Title 53 or other title appearing in this Code shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions, contents or portions thereof.

“3. That the rules and regulations of the State Board of Corrections and the Virginia Parole Board in effect on the effective date of this act shall continue in effect to the extent that they are not in conflict with this act and shall be deemed to be regulations promulgated under this act.

“4. That this recodification of Title 53 as Title 53.1 shall not be construed to require the reappointment of any officer or any member of a board, council, committee or other appointed body referred to in Title 53.1, and each such officer and member shall continue to serve the term for which appointed pursuant to the provisions of Title 53.

“7. That this act shall be deemed to have been enacted prior to any other act enacted in the 1982 regular session of the General Assembly, and any act purporting to amend and reenact any law contained in Title 53 or Title 53.1 of the Code of Virginia is deemed to be added to, amendatory of, or a repealer of, as the case may be, any corresponding law contained in this act; provided, that effect shall be given to such other or subsequent act only to the extent of any apparent changes in the law as it existed prior to the commencement of such session.”

Acts 1995, c. 811, cl. 2, effective April 6, 1995, provides: “That in keeping with the purposes of this act and to induce eligible state employees to voluntarily resign from employment with the Commonwealth, any full-time employee of the Commonwealth (i) whose position is covered by the Virginia Personnel Act (§ 2.1-110 et seq. [see now § 2.2-2900 et seq.] of the Code of Virginia), (ii) whose position is exempt from the Virginia Personnel Act pursuant to subdivision A 2, A 4 (except those persons specified in subsection C of § 2.1-116.22 [see now § 2.2-3202 ] of the Code of Virginia), A 7, A 15 or A 16 of § 2.1-116 of the Code of Virginia (iii) who is employed by the State Corporation Commission, (iv) who is employed by the Virginia Workers’ Compensation Commission, (v) who is employed by the Virginia Retirement System, (vi) who is employed by the State Lottery Department, (vii) who is employed by the Medical College of Virginia Hospitals or the University of Virginia Medical Center, or (viii) who is employed at a state educational institution as administrative or professional faculty (but excluding presidents and teaching and research faculty) as defined in the Consolidated Salary Authorization for Faculty Positions in Institutions of Higher Education, 1994-95, may, subject to the conditions set forth in the fifth enactment of this act, elect to voluntarily resign and receive a severance benefit equivalent to (i) four weeks of salary if the employee has two years or less of consecutive service or (ii) two weeks of salary for each year of consecutive service, not to exceed thirty-six weeks of salary, if the employee has more than two years of consecutive service, together with the benefits conferred by subsection D of § 2.1-116.23 [see now § 2.2-3203 ] of the Code of Virginia. Such employee shall also receive, in lieu of any unemployment compensation benefits to which the employee may be entitled, an amount, payable to the employee by the terminating agency on the employee’s date of termination, equal to the present value of the maximum unemployment compensation the employee would have received pursuant to Title 60.2 of the Code of Virginia had he been eligible for such benefits by virtue of the termination of his employment, not to exceed $5,000. The additional terms and conditions specified in § 2.1-116.23 [see now § 2.2-3203 ] shall apply to those eligible state employees making such election and to the transitional severance benefit payable hereunder. Written application of an eligible employee’s election to participate in this incentive program shall be made to his employing agency no later than March 31, 1995. An eligible employee’s resignation pursuant to the program established by this enactment shall be effective May 1, 1995, unless an alternative date is authorized by the governing authority, as defined in the fifth enactment of this act, but in no event later than July 1, 1996.”

Acts 1995, c. 152, cl. 3, effective March 10, 1995, and Acts 1995, c. 811, cl. 3, effective April 6, 1995, provide: “That in lieu of receiving a transitional severance benefit under the second enactment of this act, but in keeping with the purposes of this act and to induce eligible state employees to voluntarily retire from employment with the Commonwealth, any full-time employee of the Commonwealth (i) whose position is covered by the Virginia Personnel Act (§ 2.1-110 et seq. [see now § 2.2-2900 et seq.] of the Code of Virginia), (ii) whose position is exempt from the Virginia Personnel Act pursuant to subdivision A 2, A 4 (except those persons specified in subsection C of § 2.1-116.22 [see now § 2.2-3202 ] of the Code of Virginia), A 7, A 15 or A 16 of § 2.1-116 [see now § 2.2-2905 ] of the Code of Virginia, (iii) who is employeed by the State Corporation Commission, (iv) who is employed by the Virginia Workers’ Compensation Commission, (v) who is employed by the Virginia Retirement System, (vi) who is employed by the State Lottery Department, (vii) who is employed by the Medical College of Virginia Hospitals or the University of Virginia Medical Center, or (viii) who is employed at a state education institution as administrative or professional faculty (but excluding presidents and teaching and research faculty) as defined in the Consolidated Salary Authorization for Faculty Positions in Institutions of Higher Education, 1994-95, and who (a) is a vested member of the Virginia Retirement System and (b) is at least fifty years of age, may, subject to the conditions set forth in the fifth enactment of this act, elect to have the Commonwealth purchase on his behalf years to be credited to either his age or creditable service or a combination of age and creditable service, except that any years of credit purchased on behalf of a member of the Virginia Retirement System or the State Police Officers’ Retirement System who is eligible for unreduced retirement shall be added to his creditable service and not his age. The cost of each year of age or creditable service purchased by the Commonwealth shall be equal to fifteen percent of the employee’s present annual compensation. The number of years of age or creditable service to be purchased by the Commonwealth shall be equal to the quotient obtained by dividing (i) the cash value of the benefits to which the employee would be entitled under the second enactment of this act by (ii) the cost of each year of age or creditable service. The additional terms and conditions specified in § 2.1-116.24 [see now § 2.2-3204 ] of the Code of Virginia shall apply to those eligible state employees making such election. Written notification of an eligible employee’s election to participate in this retirement incentive program shall be received by the Virginia Retirement System no later than March 3, 1995. An eligible employee’s retirement pursuant to the program established by this enactment shall be effective May 1, 1995, unless an alternative date is authorized by the governing authority, as defined in the fifth enactment of this act, but in no event later than July 1, 1996.”

Acts 1995, c. 811, cl. 5, effective April 6, 1995, provides: “That the following employees shall not be eligible for the incentive programs established by the second and third enactments of this act: (i) members of the Judicial Retirement System (§ 51.1-300 et seq. of the Code of Virginia); (ii) members of the State Police Officers’ Retirement System (§ 51.1-200 et seq. of the Code of Virginia), except as provided in the tenth enactment of this act; (iii) ‘law-enforcement officers’ as defined in § 9-169 [see now § 9.1-101 ] of the Code of Virginia and ‘correctional’ and ‘jail officers’ as defined in § 53.1-1 of the Code of Virginia, (iv) presidents and teaching and research faculty as defined in the Consolidated Salary Authorization for Faculty Positions in Institutions of Higher Education, 1994-95, at state educational institutions, except as provided in the ninth enactment of this act; and (v) employees whose positions are contingent upon project grants as defined in the Catalogue of Federal Domestic Assistance. Otherwise eligible employees desiring to participate in the incentive programs established by the second and third enactments of this act shall submit a signed application to their agency head. Submission of such signed application no later than March 31, 1995, shall satisfy the requirement that written notification of an eligible employee’s request to participate in these incentive programs be provided by such date. Such employees shall not be eligible for these incentive programs unless accepted by the appropriate governing authority. The agency shall notify applying employees whether their application has been accepted by April 15, 1995. The criteria for evaluation and acceptance of an application shall be subject to policies and procedures developed by the appropriate governing authority. As used herein, the ‘governing authority’ shall mean (i) for an agency in the executive branch, the Governor or his designee; (ii) for an agency in the judicial branch, the Supreme Court of Virginia; and (iii) for an agency in the legislative branch or an independent agency, the appropriate collegial body.”

Acts 1999, c. 845, relating to sex offender registration and community notification, provides in cl. 2: “That the Virginia Department of State Police shall promulgate such regulations as are necessary to carry out the provisions of this act.”

Acts 2020, c. 759, cl. 3 provides: “That the State Board of Local and Regional Jails, formerly known as the State Board of Corrections, is continued, and wherever ‘State Board of Corrections’ is used in the Code of Virginia, it shall mean the State Board of Local and Regional Jails.”

Acts 2020, c. 759, cl. 4 provides: “That the standards, policies, rules, and regulations adopted by the State Board of Corrections in effect on the effective date of this act shall continue in effect until such time as amended or repealed by the State Board of Local and Regional Jails.”

The 1999 amendment added the paragraph defining “Community supervision.”

The 2000 amendments.

The 2000 amendment by c. 807, effective April 9, 2000, added “or operated under contract pursuant to § 53.1-262 ” at the end of the first sentence of the paragraph defining “State correctional facility”.

The 2020 amendments.

The 2020 amendment by c. 759, in the introductory language, substituted “a different meaning” for “otherwise or it is otherwise provided”; in the definition for “Board” or “State Board,” substituted “Local and Regional Jails” for “Corrections” and in the definition for “Community supervision,” deleted “of this title” at the end.

The 2020 Sp. Sess. I amendments.

The 2020 amendment by Sp. Sess. I, c. 23, effective March 1, 2021, added the last sentence in the definition of “Local correctional facility.”

Michie’s Jurisprudence.

For related discussion, see 7A M.J. Escape, § 1; 9A M.J. Habeas Corpus, § 11; 14B M.J. Prisons and Prisoners, § 3.

CASE NOTES

Assault of corrections officer. —

In a case in which defendant was convicted of two counts of assault and battery of a corrections officer in violation of § 18.2-57 , the appellate court could conclude from the record on appeal that one of defendant’s victims was a correctional officer within the meaning of § 53.1-1 , even though a lieutenant at the correctional center administered the oath of office to the victim. Cottrell v. Commonwealth, 2014 Va. App. LEXIS 154 (Va. Ct. App. Apr. 29, 2014).

§ 53.1-1.01. Certified mail; subsequent mail or notices may be sent by regular mail.

Whenever in this title the Board or the Department is required to send any mail or notice by certified mail and such mail or notice is sent certified mail, return receipt requested, then any subsequent, identical mail or notice that is sent by the Board or the Department may be sent by regular mail.

History. 2011, c. 566.

§ 53.1-1.1. Telephone systems within correctional facilities.

The Department of Corrections shall offer debit or prepaid telephone systems, in addition to any existing collect calling systems, which allow telephone calls to be placed to the telephone number or numbers on an approved call list. Such telephone systems may be established with the lowest available rates.

History. 2005, c. 612.

Effective date.

This section became effective January 1, 2006.

§ 53.1-1.2. Visitation policies.

The following procedures regarding individuals who are physically present at a state correctional facility for the purpose of visiting a prisoner shall apply:

  1. Upon entry into a state correctional facility, visitors shall be informed of the items that they are not permitted to bring into the facility and the items that they are permitted to bring into the facility.
  2. If an item that is otherwise legal for the visitor to possess is not permitted in the facility, the item may be placed in the possession of facility employees, if the facility is able to store such item, for the duration of the visit and returned to the visitor upon leaving the facility.
  3. If equipment is available, visitors shall be scanned or wanded by an electronic scanning or detection device, or both.
  4. If detector canines are available, visitors shall be subjected to a detector canine search.
  5. If the detector canine search, scanning, or wanding does not indicate any contraband and the visitor is otherwise eligible to visit, the visitor shall be allowed a visit with the prisoner that allows personal contact.
  6. If the detector canine search, scanning, or wanding indicates the possibility of contraband, the visitor shall have the option of consenting to a search of his person. If the visitor does not consent to a search of his person after only a detector canine search indicates the possibility of contraband and the visitor is otherwise eligible to visit, he shall be allowed a visit with the prisoner that does not allow personal contact. If the visitor does not consent to a search of his person after scanning or wanding indicates the possibility of contraband, the Department may deny the visitor entry into the facility in accordance with the operating procedures regarding visiting privileges as authorized by § 53.1-30 .
  7. A visitor shall be allowed to leave the correctional facility and discontinue the search process prior to the discovery of contraband. A visitor shall not be barred from future visits because he stops a search prior to the discovery of contraband or refuses to consent to a search of his person, including refusing to consent to a strip search or a search of any body cavity. Correctional facility personnel shall not use the search procedure or search results as a threat to bar future visits. The superintendent, warden, or other official in charge of the facility shall ensure that correctional facility personnel do not use the search procedure or search results as a threat to bar future visits.

History. 2020, c. 1170.

Article 2. State Board of Local and Regional Jails.

§ 53.1-2. Appointment of members; qualifications; terms and vacancies.

There shall be a State Board of Local and Regional Jails, which shall consist of nine residents of the Commonwealth appointed by the Governor and subject to confirmation by the General Assembly. In making appointments the Governor shall endeavor to select appointees of such qualifications and experience that the membership of the Board shall include persons suitably qualified to consider and act upon the various matters under the Board’s jurisdiction. Members of the Board shall be appointed as follows: (i) one former sheriff or one former warden, superintendent, administrator, or operations manager of a state or local correctional facility; (ii) one individual employed by a public mental health services agency with training in or clinical, managerial, or other relevant experience working with individuals subject to the criminal justice system who have mental illness; (iii) one individual with experience overseeing a correctional facility’s or mental health facility’s compliance with applicable laws, rules, and regulations; (iv) one physician licensed in the Commonwealth; (v) one individual with experience in administering educational or vocational programs in state or local correctional facilities; (vi) one individual with experience in financial management or performing audit investigations; (vii) one citizen member who represents community interests; and (viii) two individuals with experience in conducting criminal, civil, or death investigations.

Members of the Board shall serve at the pleasure of the Governor and shall be appointed for terms of four years. A vacancy other than by expiration of term shall be filled by the Governor for the unexpired term.

No person shall be eligible to serve more than two full consecutive four-year terms.

History. Code 1950, §§ 53-19.23, 53-19.24; 1974, cc. 44, 45; 1981, c. 487; 1982, c. 636; 2017, c. 759; 2020, c. 759.

Editor’s note.

Acts 2020, c. 759, cl. 3 provides: “That the State Board of Local and Regional Jails, formerly known as the State Board of Corrections, is continued, and wherever ‘State Board of Corrections’ is used in the Code of Virginia, it shall mean the State Board of Local and Regional Jails.”

Acts 2020, c. 759, cl. 4 provides: “That the standards, policies, rules, and regulations adopted by the State Board of Corrections in effect on the effective date of this act shall continue in effect until such time as amended or repealed by the State Board of Local and Regional Jails.”

The 2017 amendments.

The 2017 amendment by c. 759 added the last sentence in the first paragraph.

The 2020 amendments.

The 2020 amendment by c. 759, in the Article 2 heading, substituted “Local and Regional Jails” for “Corrections”; and in the first paragraph in the first sentence, made the same change.

§ 53.1-3. Persons ineligible for appointment.

No director, officer or employee of an institution subject to the provisions of this title shall be appointed a member of the Board.

History. Code 1950, § 53-19.32; 1974, cc. 44, 45; 1982, c. 636.

§ 53.1-4. Meetings; quorum; officers; main office.

The Board shall meet at least six times each calendar year and at other times as it deems appropriate. Five members of the Board shall constitute a quorum. The Board shall select a chairman and secretary from its membership. The main office of the Board shall be in Richmond.

History. Code 1950, §§ 53-19.25, 53-19.29, 53-19.30, 53-19.31; 1974, cc. 44, 45; 1982, c. 636.

§ 53.1-5. Powers and duties of Board.

The Board shall have the following powers and duties:

  1. To develop and establish operational and fiscal standards governing the operation of local, regional, and community correctional facilities;
  2. To advise the Governor and Director on matters relating to corrections;
  3. To make, adopt and promulgate such rules and regulations as may be necessary to carry out the provisions of this title and other laws of the Commonwealth pertaining to local, regional, and community correctional facilities;
  4. To ensure the development of programs to educate citizens and elicit public support for the activities of the Department;
  5. To develop and implement policies and procedures for the review of the death of any inmate that the Board determines warrants review that occurs in any local, regional, or community correctional facility. Such policies and procedures shall incorporate the Board’s authority under § 53.1-6 to ensure the production of evidence necessary to conduct a thorough review of any such death;
  6. To establish minimum standards for health care services, including medical, dental, pharmaceutical, and behavioral health services, in local, regional, and community correctional facilities and procedures for enforcing such minimum standards, with the advice of and guidance from the Commissioner of Behavioral Health and Developmental Services and State Health Commissioner or their designees. Such minimum standards shall require that each local, regional, and community correctional facility submit a standardized quarterly continuous quality improvement report documenting the delivery of health care services, along with any improvements made to those services, to the Board. The Board shall make such reports available to the public on its website. The Board may determine that any local, regional, or community correctional facility that is accredited by the American Correctional Association or National Commission on Correctional Health Care meets such minimum standards solely on the basis of such facility’s accreditation status; however, without exception, the requirement that each local, regional, and community correctional facility submit a standardized quarterly continuous quality improvement report to the Board shall be a mandatory minimum standard; and
  7. To report annually on or before December 1 to the General Assembly and the Governor on the results of the inspections and audits of local, regional, or community correctional facilities conducted pursuant to § 53.1-68 and the reviews of the deaths of inmates that occur in any local, regional, or community correctional facility conducted pursuant to § 53.1-69.1 . The report shall include (i) a summary of the results of such inspections, audits, and reviews, including any trends identified by such inspections, audits, and reviews and the frequency of violations of each standard established for local, regional, or community correctional facilities, and (ii) any recommendations for changes to the standards established for local, regional, or community correctional facilities or the policies and procedures for conducting reviews of the death of inmates to improve the operations, safety, and security of local, regional, or community correctional facilities.

History. Code 1950, §§ 53-19.33, 53-19.34, 53-19.39; 1974, cc. 44, 45; 1976, c. 249; 1982, c. 636; 1984, c. 720; 2011, c. 375; 2012, cc. 803, 835; 2015, c. 293; 2017, c. 759; 2019, cc. 695, 696; 2020, c. 759.

Editor’s note.

Acts 2018, c. 815, cl. 1 provides: Ҥ 1. The State Board of Corrections shall adopt and implement a standard to ensure the provision of feminine hygiene products to female inmates without charge.

“§ 2. The Director of the Department of Corrections shall adopt and implement a policy and procedure to ensure the provision of feminine hygiene products to female prisoners without charge.”

Acts 2019, c. 725 provides: “§ 1. That the Board of Corrections shall review its standards related to allowable restraint practices for pregnant prisoners to ensure that (i) pregnant prisoners are treated humanely and restrained in a manner that accounts for their specific health needs and (ii) such restraint procedures provide adequate protection for the safety of correctional staff and others who may be in close proximity to such prisoners.”

Acts 2020, c. 522, cl. 1 provides: “That the Board of Corrections (the Board) shall, in consultation with a stakeholder work group formed for the purpose of gathering input, conduct a review of the standards and requirements governing, and the application and use of, isolated confinement in local correctional facilities. The stakeholder work group shall comprise interested parties including at least one representative from each of the following groups: sheriffs, regional superintendents, public defenders, formerly incarcerated people, mental health experts, disability rights advocates, and civil liberties advocates. The Board shall report its findings and recommendations to the Secretary of Public Safety and Homeland Security and the Chairs of the House Committee for Courts of Justice, the House Committee on Public Safety, the Senate Committee on the Judiciary, and the Senate Committee on Rehabilitation and Social Services by December 1, 2020, and publish the report on its website. The Board may thereafter promulgate standards consistent with the findings of the report on the use of isolated confinement in local correctional facilities. For purposes of this act, ‘isolated confinement’ means confinement of a prisoner to a cell, alone or with another prisoner, for 20 or more hours per day.”

Acts 2020, c. 759, cl. 4 provides: “That the standards, policies, rules, and regulations adopted by the State Board of Corrections in effect on the effective date of this act shall continue in effect until such time as amended or repealed by the State Board of Local and Regional Jails.”

Acts 2021, Sp. Sess. I, c. 392 provides:

Ҥ 1. That the Board of Local and Regional Jails (the Board) shall conduct a review of services provided to inmates during pregnancy, pregnancy termination, labor and delivery, and postpartum recovery. In conducting such review, the Board shall (i) identify and analyze all obstetric and gynecological services and any other services provided by local and regional jails to inmates during pregnancy, pregnancy termination, labor and delivery, and postpartum recovery; (ii) compare such services to best practices recommended by the American Correctional Association, American Jail Association, National Commission on Correctional Health Care, and American College of Obstetricians and Gynecologists; and (iii) develop recommendations to ensure that proper services are provided to inmates during pregnancy, pregnancy termination, labor and delivery, and postpartum recovery.

“§ 2. In the course of such review, the Board shall convene and consult with a stakeholder work group composed of the following members: representatives of the Indigent Defense Commission, Legal Aid Justice Center, Virginia Sheriffs’ Association, and Virginia Association of Regional Jails; at least one physician and one mental health professional who provides care to inmates; at least one obstetrician, one birth advocate, and one reproductive rights advocate; at least two former inmates who were pregnant or gave birth while incarcerated in a local or regional jail; and other interested stakeholders. No more than half of the work group members shall be employees of or under contract with a local or regional jail.

“The Board shall also, as necessary, consult with other relevant stakeholders and experts, including the Department of the Treasury’s Division of Risk Management.

“§ 3. Any records or information obtained from current or former inmates during such review shall be used only for purposes of conducting the review required by this act and shall be confidential and exempt from mandatory disclosure under the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia). No report or other document generated by the Board or the work group during the review shall contain identifying information specific to any current or former inmate, local or regional jail, or prior case or complaint.

Ҥ 4. The Board shall report its findings and recommendations to the Secretary of Public Safety and Homeland Security and the Chairmen of the Senate Committee on the Judiciary, Senate Committee on Rehabilitation and Social Services, House Committee for Courts of Justice, and House Committee on Public Safety by July 1, 2022. The Board shall post such report on its website.

“§ 5. The Board shall adopt regulations consistent with its findings and recommendations.”

The 2011 amendments.

The 2011 amendment by c. 375 rewrote the section.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 99, are identical, and added subdivision 5 and made a related change.

The 2015 amendments.

The 2015 amendment by c. 293 added subdivision 6 and made related changes.

The 2017 amendments.

The 2017 amendment by c. 759 inserted subdivision 5 and renumbered remaining subdivisions accordingly.

The 2019 amendments.

The 2019 amendments by cc. 695 and 696 are identical, and inserted subdivision 6 and made related changes.

The 2020 amendments.

The 2020 amendment by c. 759 rewrote subdivision 7, which read: “To establish and promulgate regulations regarding the provision of educational and vocational programs within the Department; and”; deleted former subdivision 8, which read: “To adopt and promulgate regulations and require the Director and Department to enforce regulations prohibiting the possession of obscene materials, as defined and described in Article 5 (§ 18.2-372 et seq.) of Chapter 8 of Title 18.2, by prisoners incarcerated in state correctional facilities.”

§ 53.1-5.1. Repealed by Acts 2020, c. 759, cl. 2.

Cross references.

For current provisions as to the duty to establish regulations regarding human research, see subdivision 14 of § 53.1-10 .

Editor’s note.

Former § 53.1-5.1 , pertaining to establishing regulations regarding human research, derived from 1992, c. 603.

§ 53.1-5.2. Compilation of certain data for redistricting purposes.

  1. The Board shall direct the sheriffs of all local jails and the jail superintendents of all regional jails to provide to it, no later than May 1 of any year in which the decennial census is taken, information regarding each person incarcerated in a local or regional jail on April 1 of that year. Such information shall include, for each person incarcerated, (i) his residential street address at the time of incarceration, or other legal residence, if known; (ii) his race, his ethnicity as identified by him, and whether he is 18 years of age or older; and (iii) the street address of the correctional facility in which he was incarcerated on April 1 of that year. Upon receipt of such information, the Board shall assign to each person a unique identifier, other than his name or offender identification number.
  2. Pursuant to § 24.2-314 , the Board shall provide to the Division of Legislative Services, not later than July 1 of any year in which the decennial census is taken and in a format specified by the Division of Legislative Services, the information specified in subsection A, including the Board-assigned unique identifier.

History. 2020, cc. 1229, 1265.

Editor’s note.

Acts 2020, cc. 1229 and 1265, cl. 2 provides: “That, notwithstanding the deadlines set forth in §§ 24.2-314 and 53.1-5.2 of the Code of Virginia, as created by this act, and in § 53.1-10 of the Code of Virginia, as amended by this act, the Board of Corrections shall direct the sheriffs of all local jails and the jail superintendents of all regional jails to provide to it the information required pursuant to § 53.1 -5.2 of the Code of Virginia, as created by this act, by August 1, 2020; the Department of Corrections and the Board of Corrections shall provide to the Division of Legislative Services the information required pursuant to § 24.2-314 of the Code of Virginia, as created by this act, by September 1, 2020; and the Division of Legislative Services shall require each agency operating a federal correctional facility in the Commonwealth to provide to it the information specified in § 24.2-314 of the Code of Virginia, as created by this act, by September 1, 2020.”

§ 53.1-6. Board may administer oaths, conduct hearings, and issue subpoenas.

The Board, in the exercise and performance of its functions, duties, and powers under the provisions of this title, is authorized to hold and conduct hearings, issue subpoenas requiring the attendance of witnesses and the production of records, memoranda, papers, and other documents, administer oaths, and take testimony thereunder.

When a review is ordered by the Board concerning any correctional facility subject to the Board’s jurisdiction or concerning the conduct of persons connected therewith, the chairman of the Board, by order of the Board, may issue a summons directed to the sheriff of the county or city in which such institution is located commanding him to summon any person to be present on a certain day at such place within such county or city as may be designated by the Board to give evidence before the Board. The Board shall have like powers to issue a summons directed to the sheriff and to direct the sheriff to enforce such summons.

The chairman of the Board shall make the entry required of the clerk by § 17.1-612 concerning the amount any witness is to be paid as if the attendance of the witness was before a court. The sum to which the witness is entitled shall be paid out of the funds appropriated to the Board.

History. Code 1950, § 53-19.36; 1974, cc. 44, 45; 1982, c. 636; 2020, c. 759.

The 2020 amendments.

The 2020 amendment by c. 759, in the first paragraph, inserted “The” at the beginning and substituted “administer oaths, and take” for “to administer oaths and to take”; added the second and third paragraphs; and made stylistic changes.

§ 53.1-6.1. Executive director; staff; compensation.

The Board may appoint and employ an executive director and such other persons as it deems necessary to assist it in carrying out its duties. The Board may determine the duties of such staff and fix their salaries or compensation within the amounts appropriate therefor. The duties of the executive director shall include management of (i) inspections and audits of local, regional, or community correctional facilities conducted pursuant to § 53.1-68 and (ii) reviews of the deaths of inmates that occur in any local, regional, or community correctional facility conducted pursuant to § 53.1-69.1 .

History. 2020, c. 759.

§ 53.1-7. Repealed by Acts 2011, c. 375, cl. 2.

Editor’s note.

Former § 53.1-7 , pertaining to the board’s authority to authorize payment of certain medical expenses incurred by a prisoner after release, derived from Code 1950, § 53-19.36:1; 1976, c. 397; 1982, c. 636.

Article 3. Department of Corrections and Director of Corrections.

§ 53.1-8. Department of Corrections.

There shall be in the executive department a Department of Corrections responsible to the Governor. The Department shall be under the supervision and management of the Director.

History. Code 1950, § 53-19.5; 1974, cc. 44, 45; 1982, c. 636; 2020, c. 759.

Editor’s note.

Acts 2020, c. 395, cl. 1 provides: “That the Department of Corrections (the Department) shall create a workgroup composed of disability advocates and other stakeholders to review current Department guidelines and develop recommendations that recognize and make accommodations for people with developmental disabilities, as defined in the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (P.L. 106-402), including intellectual disabilities and autism spectrum disorders.”

The 2020 amendments.

The 2020 amendment by c. 759 deleted the former second sentence, which read: “The Director shall carry out his management and supervisory powers in accordance with standards and goals of the Board.”

CASE NOTES

Appeals by state agencies. —

Pursuant to § 53.1-8 , the Virginia Department of Corrections is an administrative subdivision of the Commonwealth of Virginia; therefore, under § 8.01-676.1 , it was not required to post an appeal bond in its appeal from the reversal of its termination of a corrections officer. Va. Dep't of Corr. v. Compton, 47 Va. App. 202, 623 S.E.2d 397, 2005 Va. App. LEXIS 517 (2005).

OPINIONS OF THE ATTORNEY GENERAL

Enhanced punishment provisions. —

Except for employees of the Department of Corrections involved in the care of inmates, and volunteers and members of a bona fide rescue squad who are engaged in the performance of their duties, medical personnel who provide care to inmates are not covered by the enhanced punishment provisions of § 18.2-57 . See opinion of Attorney General to The Honorable Ralph S. Northam, Member, Senate of Virginia, 10-090, 2010 Va. AG LEXIS 58 (9/24/10).

§ 53.1-9. Appointment of Director; term.

A Director of Corrections shall be appointed by the Governor, subject to confirmation by each house of the General Assembly.

The Director shall be appointed for a term coincident with that of the Governor and shall serve at the pleasure of the Governor. Vacancies shall be filled in the same manner as original appointments are made.

History. Code 1950, §§ 53-19.6, 53-19.7; 1974, cc. 44, 45; 1982, c. 636.

§ 53.1-10. Powers and duties of Director.

The Director shall be the chief executive officer of the Department and shall have the following duties and powers:

  1. To supervise and manage the Department and its system of state correctional facilities;
  2. To implement the standards and goals of the Board as formulated for local and community correctional programs and facilities and lock-ups;
  3. To employ such personnel and develop and implement such programs as may be necessary to carry out the provisions of this title, subject to Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2, and within the limits of appropriations made therefor by the General Assembly;
  4. To establish and maintain a general system of schools for persons committed to the institutions and community-based programs for adults as set forth in § 53.1-67.9 . Such system shall include, as applicable, elementary, secondary, postsecondary, career and technical education, adult, and special education schools.
    1. The Director shall employ a Superintendent who will oversee the operation of educational and vocational programs in all institutions and community-based programs for adults as set forth in § 53.1-67.9 operated by the Department. The Department shall be designated as a local education agency (LEA) but shall not be eligible to receive state funds appropriated for direct aid to public education.
    2. When the Department employs a teacher licensed by the Board of Education to provide instruction in the schools of the correctional centers, the Department of Human Resource Management shall establish salary schedules for the teachers which endeavor to be competitive with those in effect for the school division in which the correctional center is located.
    3. The Superintendent shall develop a functional literacy program for inmates testing below a selected grade level, which shall be at least at the twelfth grade level. The program shall include guidelines for implementation and test administration, participation requirements, criteria for satisfactory completion, and a strategic plan for encouraging enrollment at an institution of higher education or an accredited vocational training program or other accredited continuing education program.
    4. For the purposes of this section, the term “functional literacy” shall mean those educational skills necessary to function independently in society, including, but not limited to, reading, writing, comprehension, and arithmetic computation.
    5. In evaluating a prisoner’s educational needs and abilities pursuant to § 53.1-32.1 , the Superintendent shall create a system for identifying prisoners with learning disabilities.
    1. To make and enter into all contracts and agreements necessary or incidental to the performance of the Department’s duties and the execution of its powers under this title, including, but not limited to, contracts with the United States, other states, and agencies and governmental subdivisions of this Commonwealth, and contracts with corporations, partnerships, or individuals which include, but are not limited to, the purchase of water or wastewater treatment services or both as necessary for the expansion or construction of correctional facilities;
    2. Notwithstanding the Director’s discretion to make and enter into all contracts and agreements necessary or incidental to the performance of the Department’s duties and the execution of its powers under this title, upon determining that it shall be desirable to contract with a public or private entity for the provision of community-based residential services pursuant to Chapter 5 (§ 53.1-177 et seq.), the Director shall notify the local governing body of the jurisdiction in which the facility is to be located of the proposal and of the facility’s proposed location and provide notice, where requested, to the chief law-enforcement officer for such locality when an offender is placed in the facility at issue;
    3. Notwithstanding the Director’s discretion to make and enter into all contracts and agreements necessary or incidental to the performance of the Department’s duties and the execution of its powers under this title, upon determining that it is necessary to transport Virginia prisoners through or to another state and for other states to transport their prisoners within the Commonwealth, the Director may execute reciprocal agreements with other states’ corrections agencies governing such transports that shall include provisions allowing each state to retain authority over its prisoners while in the other state.
  5. To accept, hold and enjoy gifts, donations and bequests on behalf of the Department from the United States government and agencies and instrumentalities thereof, and any other source, subject to the approval of the Governor. To these ends, the Director shall have the power to comply with such conditions and execute such agreements as may be necessary, convenient or desirable;
  6. To collect data pertaining to the demographic characteristics of adults, and juveniles who are adjudicated as adults, incarcerated in state correctional institutions, including, but not limited to, the race or ethnicity, age, and gender of such persons, whether they are a member of a criminal gang, and the types of and extent to which health-related problems are prevalent among such persons. Beginning July 1, 1997, such data shall be collected, tabulated quarterly, and reported by the Director to the Governor and the General Assembly at each regular session of the General Assembly thereafter. The report shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports;
  7. To make application to the appropriate state and federal entities so as to provide any prisoner who is committed to the custody of the state a Department of Motor Vehicles approved identification card that would expire 90 days from issuance, a copy of his birth certificate if such person was born in the Commonwealth, and a social security card from the Social Security Administration;
  8. To forward to the Commonwealth’s Attorneys’ Services Council, updated on a monthly basis, a list of all identified criminal gang members incarcerated in state correctional institutions. The list shall contain identifying information for each criminal gang member, as well as his criminal record;
  9. To give notice, to the attorney for the Commonwealth prosecuting a defendant for an offense that occurred in a state correctional facility, of that defendant’s known gang membership. The notice shall contain identifying information for each criminal gang member as well as his criminal record;
  10. To designate employees of the Department with internal investigations authority to have the same power as a sheriff or a law-enforcement officer in the investigation of allegations of criminal behavior affecting the operations of the Department. Such employees shall be subject to any minimum training standards established by the Department of Criminal Justice Services under § 9.1-102 for law-enforcement officers prior to exercising any law-enforcement power granted under this subdivision. Nothing in this section shall be construed to grant the Department any authority over the operation and security of local jails not specified in any other provision of law. The Department shall investigate allegations of criminal behavior in accordance with a written agreement entered into with the Department of State Police. The Department shall not investigate any action falling within the authority vested in the Office of the State Inspector General pursuant to Chapter 3.2 (§ 2.2-307 et seq.) of Title 2.2 unless specifically authorized by the Office of the State Inspector General;
  11. To prescribe and enforce rules prohibiting the possession of obscene materials, as defined in Article 5 (§ 18.2-372 et seq.) of Chapter 8 of Title 18.2, by prisoners incarcerated in state correctional facilities;
  12. To develop and administer a survey of each correctional officer, as defined in § 53.1-1 , who resigns, is terminated, or is transitioned to a position other than correctional officer for the purpose of evaluating employment conditions and factors that contribute to or impede the retention of correctional officers;
  13. To promulgate regulations pursuant to the Administrative Process Act (§ 2.2-4000 et seq.) to effectuate the provisions of Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1 for human research, as defined in § 32.1-162.16 , to be conducted or authorized by the Department. The regulations shall require the human research committee to submit to the Governor, the General Assembly, and the Director or his designee at least annually a report on the human research projects reviewed and approved by the committee and shall require the committee to report any significant deviations from the proposals as approved; and
  14. To provide, pursuant to § 24.2-314 , to the Division of Legislative Services, not later than July 1 of any year in which the decennial census is taken and in a format specified by the Division of Legislative Services, information regarding each person incarcerated in a state correctional facility on April 1 of that year. Such information shall include, for each person incarcerated, (i) a unique identifier, other than his name or offender identification number, assigned by the Director; (ii) his residential street address at the time of incarceration, or other legal residence, if known; (iii) his race, his ethnicity as identified by him, and whether he is 18 years of age or older; and (iv) the street address of the correctional facility in which he was incarcerated on April 1 of that year.

History. Code 1950, §§ 53-19.8, 53-19.14; 1974, cc. 44, 45; 1982, c. 636; 1994, 2nd Sp. Sess., c. 7; 1995, c. 725; 1997, c. 894; 2003, cc. 94, 516, 854; 2006, cc. 431, 500; 2007, c. 392; 2009, cc. 39, 621; 2012, cc. 803, 835; 2013, cc. 143, 214; 2014, c. 84; 2015, cc. 99, 293; 2016, c. 205; 2019, c. 618; 2020, cc. 759, 1229, 1265.

Cross references.

For the Division of Legislative Automated Systems, see § 30-34.11.

Editor’s note.

Acts 2006, cc. 431 and 500, which added subdivision 8, in cl. 2 provide: “That the information forwarded by the Department of Corrections and the Department of Juvenile Justice to the Commonwealth’s Attorneys’ Services Council shall be in a form mutually agreeable to all parties.”

At the direction of the Virginia Code Commission, the following changes were made to conform to Acts 2016, c. 588: in subdivision 4, substituted “postsecondary” for “post-secondary”; and in subdivision 4 c, substituted “at an institution of higher education” for “in college.”

Acts 2018, c. 815, cl. 1 provides: Ҥ 1. The State Board of Corrections shall adopt and implement a standard to ensure the provision of feminine hygiene products to female inmates without charge.

“§ 2. The Director of the Department of Corrections shall adopt and implement a policy and procedure to ensure the provision of feminine hygiene products to female prisoners without charge.”

Acts 2019, c. 303 provides: “§ 1. The Director of the Department of Corrections shall review the Department’s visitation policies concerning visitors’ wearing of tampons or menstrual cups at state correctional facilities and shall revise such policies as necessary to permit such visitors to wear tampons or menstrual cups. The Department shall make the policy available to the public as soon as practicable and shall provide a copy to the Chairmen of the House Committee on Militia, Police and Public Safety and the Senate Committee on Rehabilitation and Social Services by November 1, 2019.”

Acts 2020, cc. 1229 and 1265, cl. 2 provides: “That, notwithstanding the deadlines set forth in §§ 24.2-314 and 53.1-5.2 of the Code of Virginia, as created by this act, and in § 53.1-10 of the Code of Virginia, as amended by this act, the Board of Corrections shall direct the sheriffs of all local jails and the jail superintendents of all regional jails to provide to it the information required pursuant to § 53.1 -5.2 of the Code of Virginia, as created by this act, by August 1, 2020; the Department of Corrections and the Board of Corrections shall provide to the Division of Legislative Services the information required pursuant to § 24.2-314 of the Code of Virginia, as created by this act, by September 1, 2020; and the Division of Legislative Services shall require each agency operating a federal correctional facility in the Commonwealth to provide to it the information specified in § 24.2-314 of the Code of Virginia, as created by this act, by September 1, 2020.”

The 1997 amendment added subdivision 7.

The 2003 amendments.

The 2003 amendment by cc. 94 and 854 are identical, and deleted former subdivision 6, which read: “To serve on the Virginia Correctional Enterprises Advisory Board established pursuant to,” redesignated former subdivision 7 as present subdivision 6, and in present subdivision 6, added the third sentence.

The 2003 amendment by c. 516 deleted “and” at the end of former subdivision 6; inserted “and” at the end of former subdivision 7; and added present subdivision 7.

The 2006 amendments.

The 2006 amendments by cc. 431 and 500 are identical, and added subdivision 8 and made related changes.

The 2007 amendments.

The 2007 amendment by c. 392 inserted the subdivision 4 a designation and added subdivision 4 b.

The 2009 amendments.

The 2009 amendment by cc. 39 and 621 are identical and added subdivision 9 and made related changes.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 99, are identical, and inserted subdivision 4 and redesignated the remaining subdivisions accordingly.

The 2013 amendments.

The 2013 amendments by cc. 143 and 214 are identical, and added subdivision 11 and made related changes.

The 2014 amendments.

The 2014 amendment by c. 84, in subdivision 4 a, substituted “Superintendent” for “Superintendant”; and in subdivision 4 c, deleted “or GED” preceding “level” at the end of the first sentence.

The 2015 amendments.

The 2015 amendment by c. 99 added subdivision 5 c.

The 2015 amendment by c. 293 added subdivision 12 and made related changes.

The 2016 amendments.

The 2016 amendment by c. 205 added subdivision 13 and made related changes.

The 2019 amendments.

The 2019 amendment by c. 618 substituted “§ 53.1-67.9 ” for “§§ 53.1-67.7 and 53.1-67.8 ” in subdivisions 4 and 4 a.

The 2020 amendments.

The 2020 amendment by c. 759, in subdivision 5 a and subdivision 6, deleted “consistent with applicable standards and goals of the Board” at the end; in subdivision 12, substituted “To prescribe and enforce rules” for “To enforce and direct the Department to enforce regulatory policies promulgated by the Board”; added subdivision 14, and made related changes.

The 2020 amendments by cc. 1229 and 1265 are identical, and added subdivision 14, which was subsequently redesignated as subdivision 15 at the direction of the Virginia Code Commission, and made related changes.

CASE NOTES

Duty to oversee enforcement of laws and regulations. —

The Director of the Department of Corrections has a general duty to oversee enforcement of the laws and regulations governing penal institutions within the Commonwealth and to oversee supervision of the same; thus he owed a duty to the plaintiff, a prisoner, which, if violated in the manner alleged, may have contributed to the injuries said to have been sustained. Payne v. Rollings, 402 F. Supp. 1225, 1975 U.S. Dist. LEXIS 15913 (E.D. Va. 1975) (decided under prior law).

Liability for negligence in local jails. —

The Director is not liable for isolated acts of negligence occurring in local jails, and while the Director has a duty to implement the standards and goals of the board as formulated for local correctional facilities and lockups, he has no direct control over city jail employees. The Director, moreover, cannot be held vicariously liable for the negligent acts, if any, committed by employees of the city jail. Dillon ex rel. Dillon v. Director, Dep't of Cors., 552 F. Supp. 30, 1982 U.S. Dist. LEXIS 16924 (W.D. Va. 1982) (decided under prior law).

Attorney generals not proper parties. —

Where plaintiff failed to state what legal duties attorney generals owed him and how those duties were breached, all claims against them were dismissed in suit complaining of correctional facilities for morbidly obese inmate. Torcasio v. Murray, 862 F. Supp. 1482, 1994 U.S. Dist. LEXIS 13240 (E.D. Va. 1994), aff'd in part, rev'd, 57 F.3d 1340, 1995 U.S. App. LEXIS 16031 (4th Cir. 1995).

Authority to set probation conditions. —

Statutory scheme for probation insures that both the Department of Corrections and its probation officers, who are best positioned to determine what conditions and restrictions will effectively accomplish these goals, will have the flexibility they need to set appropriate conditions for the individual probationer. Clarke v. Commonwealth, 2017 Va. App. LEXIS 338 (Va. Ct. App. Dec. 27, 2017).

Department of Corrections has authority to develop and implement probation. —

Read together, §§ 53.1-145 , 53.1-10(3) , and 53.1-140 grant the Department of Corrections the authority to develop and implement regulations governing its supervision of probationers, in order to accomplish the well-established goals of probation: to reform the offender and restore to a useful place in society an offender who is a good social risk. Clarke v. Commonwealth, 2017 Va. App. LEXIS 338 (Va. Ct. App. Dec. 27, 2017).

§ 53.1-11. Bond of Director.

The Director shall be bonded in accordance with § 2.2-1840 , conditioned upon the faithful discharge of his duties.

History. Code 1950, § 53-19.10; 1974, cc. 44, 45; 1982, c. 636; 2021, Sp. Sess. I, c. 152.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 152, effective July 1, 2021, in the first sentence, substituted “be bonded in accordance with § 2.2-1840 ” for “give bond with corporate surety in such penalty as may be fixed by the Governor” and deleted the second sentence, which read: “The premium on such bond shall be paid for as other expenses of the Department are paid”; and made stylistic changes.

§ 53.1-12. Divisions of Department; division heads.

The Director shall establish in the Department such divisions and regional offices as may be necessary and shall appoint heads of these divisions and offices in accordance with the provisions of Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2.

History. Code 1950, §§ 53-19.11, 53-19.12; 1974, cc. 44, 45; 1978, c. 555; 1982, c. 636.

§ 53.1-13. Bonds of agents and employees.

Proper bonds shall be required of all agents and employees who handle any funds which come into custody of the Department. The premiums on the bonds shall be paid from funds appropriated to the Department.

History. Code 1950, § 53-19.16; 1974, cc. 44, 45; 1982, c. 636.

§ 53.1-14. Repealed by Acts 1984, c. 734.

§ 53.1-15. Repealed by Acts 2020, c. 759, cl. 2.

Cross references.

For current provisions as to summons in Board investigations and how witnesses to be paid, see § 53.1-6 .

Editor’s note.

Former § 53.1-15 , pertaining to the duty of Director in Board investigations and how witnesses are to be paid, derived from Code 1950, §§ 53-18, 53-19.20; 1970, c. 648; 1974, cc. 44, 45; 1979, c. 700; 1982, c. 636.

§ 53.1-16. Repealed by Acts 2011, cc. 798 and 871, cl. 2, effective July 1, 2012.

Editor’s note.

Acts 2011, cc. 798 and 871, which added Chapter 3.2 (§ 2.2-307 et seq.) of Title 2.2, in cl. 3 provides: “That, effective July 1, 2012, the Office of the State Inspector General created by this act shall be deemed the successor in interest to the (i) Office of the Inspector General for Behavioral Health and Developmental Services, (ii) Inspector General for the Department of Corrections, (iii) Inspector General of the Department of Juvenile Justice, (iv) Inspector General of the Department of Transportation, and (v) Department of the State Internal Auditor, to the extent that this act transfers powers and duties. All rights, title, and interest in and to any real or tangible personal property vested in the Inspector General for Behavioral Health and Developmental Services, the Inspector General for the Department of Corrections, the Inspector General of the Department of Juvenile Justice, the Inspector General of the Department of Transportation, and the Department of the State Internal Auditor to the extent that this act transfers powers and duties as of July 1, 2012, shall be transferred to and taken as standing in the name of the Office of the State Inspector General created by this act.”

Acts 2011, cc. 798 and 871, cl. 4 provides: “That the Governor may transfer an appropriation or any portion thereof within a state agency established, abolished, or otherwise affected by the provisions of this act, or from one such agency to another, to support the changes in organization or responsibility resulting from or required by the provisions of this act.”

Acts 2011, cc. 798 and 871, cl. 7 provides: “That the provisions of this act shall become effective on July 1, 2012, except that the provisions of the fifth enactment of this act shall become effective on July 1, 2011.”

Former § 53.1-16 , pertaining to police power of internal investigators and training, derived from Code 1950, § 53-19.14:1; 1981, c. 299; 1982, c. 636; 1986, c. 290; 1992, c. 201; 1997, c. 39.

§ 53.1-17. Defense of Department of Corrections employees.

If any employee of the Department shall be brought before any regulatory or administrative body, summoned before any regular or special grand jury, or, arrested, indicted, or prosecuted on any charge arising out of any act committed in the discharge of his official duties, the Director may, with the approval of the Governor, pay in whole or in part, counsel employed by such employee to represent him, provided he is neither convicted nor terminated from his employment. Such compensation shall be paid from funds appropriated to the Department.

History. Code 1950, §§ 53-16.1, 53-19.19; 1958, c. 542; 1970, c. 648; 1974, cc. 44, 45; 1976, c. 517; 1982, c. 636; 1989, c. 298.

§ 53.1-17.1. Continuous quality improvement committee; report.

  1. The Director shall establish a health care continuous quality improvement committee, which shall be composed of the Director, or his designee, and at least one of each of the following: a health services director, physician, nurse, dentist, mental health director, pharmacist, psychiatrist, specialist in infection control, and grievance counselor employed by the Department. The committee shall (i) identify appropriate criteria for evaluation of the quality of health care services provided by the Department, (ii) monitor and evaluate the quality of health care services provided by the Department utilizing the criteria identified, and (iii) develop strategies to improve the quality of health care services provided by the Department.
  2. Beginning July 1, 2020, the committee established pursuant to subsection A shall publish quarterly continuous quality improvement reports setting forth such data and information as the committee shall deem appropriate on a website maintained by the Department. Each facility shall submit quarterly continuous quality improvement reports containing such data and information as may be required by the committee at such times as may be required by the committee, for inclusion in the committee’s quarterly continuous quality improvement report.

History. 2019, cc. 320, 463.

Chapter 2. State Correctional Facilities.

Article 1. General Provisions.

§ 53.1-18. Department to have custody of property; right to sue to protect property.

The Department shall have custody of both the real and personal property of state correctional facilities. The Department is authorized to institute and prosecute in the name of the Commonwealth any suit or proceeding to protect the rights of the Commonwealth in such property.

History. Code 1950, § 53-20; 1970, c. 648; 1982, c. 636; 2020, c. 759.

The 2020 amendments.

The 2020 amendment by c. 759 substituted “Department” for “Board” both times it appears.

§ 53.1-19. Establishment of correctional institutions.

The Director shall determine the necessity for and select the site of any new state correctional facility and any land to be taken or purchased by the Commonwealth for the purposes of any new or existing state correctional facility. The Director shall have charge of the construction of any new building at any state correctional facility, shall determine the design thereof, and for this purpose may employ architects and other experts or hold competitions for plans and designs. On or after January 1, 1996, at least ninety days in advance of the issuance of requests for proposals for construction, notice shall be given by the Director to the chairman of the board of supervisors or mayor of a county, city or town in which the facility is to be established or expanded for the purpose of the confinement of inmates. In addition, if the local governing body in the jurisdiction where the facility is to be located so requests, upon receipt of such request, the Department shall hold a public hearing in that jurisdiction. The Director may, if he finds it practical and economical, use persons sentenced to the Department as laborers in the construction of such structures.

If land or property is taken or purchased by the Department, title shall be taken in the name of the Commonwealth. The original names of all state correctional facilities shall be designated by the Department and approved by the Governor.

History. Code 1950, § 53-76.1; 1970, c. 648; 1974, cc. 44, 45; 1976, c. 393; 1982, c. 636; 1995, c. 846; 1996, c. 234; 2020, c. 759.

The 2020 amendments.

The 2020 amendment by c. 759, in the first paragraph, deleted “subject to the approval of the Board and the Governor” following “The Director”; and in the second paragraph, substituted “Department” for “Board” both times it appears.

OPINIONS OF THE ATTORNEY GENERAL

Agreement with private company for employment of prisoners. —

Subsection A of § 53.1-45.1 authorizes the Director of the Department of Corrections to permit prisoners to be trained, housed and paid by a private ship-disposal firm to dismantle the ships at the James River Reserve Fleet site, provided that the Director receives prior approval of the Governor and properly designates the site as a state correctional facility pursuant to this section. See opinion of Attorney General to The Honorable David B. Albo, Member, House of Delegates, 03-042 (9/30/03).

§ 53.1-20. Commitment of convicted persons to custody of Director.

  1. Every person convicted of a felony committed before January 1, 1995, and sentenced to the Department for a total period of more than two years shall be committed by the court to the custody of the Director of the Department. The Director shall receive all such persons into the state corrections system within sixty days of the date on which the final sentencing order is mailed by certified letter or sent by electronic transmission to the Director by the clerk.
  2. Persons convicted of felonies committed on or after January 1, 1995, and sentenced to the Department or sentenced to confinement in jail for a year or more shall be placed in the custody of the Department and received by the Director into the state corrections system within sixty days of the date on which the final sentencing order is mailed by certified letter or sent by electronic transmission to the Director by the clerk.
  3. If the Governor finds that the number of prisoners in state facilities poses a threat to public safety, it shall be within the discretion of the Director to determine the priority for receiving prisoners into the state corrections system from local correctional facilities.
  4. All felons sentenced to a period of incarceration and not placed in an adult state correctional facility pursuant to this section shall serve their sentences in local correctional facilities which shall not include a secure facility or detention home as defined in § 16.1-228 .
  5. Felons committed to the custody of the Department for a new felony offense shall be received by the Director into the state corrections system in accordance with the provisions of this section without any delay for resolution of (i) issues of alleged parole violations set for hearing before the Parole Board or (ii) any other pending parole-related administrative matter.
  6. After accounting for safety, security, and operational factors, the Director shall place prisoners who are known primary caretakers of minor children in a facility as close as possible to such children.

History. Code 1950, §§ 19-270, 19.1-296, 53-21.1; 1960, c. 366; 1966, c. 522; 1970, cc. 67, 648; 1972, c. 145; 1973, c. 330; 1974, cc. 44, 45, 506; 1981, c. 529; 1982, c. 636; 1990, cc. 676, 768; 1993, c. 502; 1994, cc. 128, 859, 949; 1994, 2nd Sp. Sess., cc. 1, 2; 1997, c. 840; 2020, c. 526.

Editor’s note.

Acts 1990, c. 676, cl. 2, and c. 768, cl. 2, provide: “That the Secretary of Public Safety shall develop by July 1, 1991, a plan for the orderly implementation of the transfer of responsibility for certain felons from state to local correctional authorities and for the transfer of felons between state and local correctional facilities as required by this act. Such plan shall provide for maintenance of current efforts to transfer prisoners with sentences of more than two years into state correctional facilities.”

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 402 D, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of § 53.1-20 A. and B., Code of Virginia, the Director, Department of Corrections, shall receive offenders into the state correctional system from local and regional jails at such time as he determines that sufficient, secure and appropriate housing is available, placing a priority on receiving inmates diagnosed and being treated for HIV, mental illnesses requiring medication, or Hepatitis C. The director shall maximize, consistent with inmate and staff safety, the use of bed space in the state correctional system. The director shall report monthly to the Secretary of Public Safety and Homeland Security and the Department of Planning and Budget on the number of inmates housed in the state correctional system, the number of inmate beds available, and the number of offenders housed in local and regional jails that meet the criteria set out in § 53.1-20 A. and B.”

The 1997 amendment rewrote this section.

The 2020 amendments.

The 2020 amendment by c. 526 added subsection F.

CASE NOTES

Editor’s note.

Many of the cases annotated below were decided under former Title 53.

The equal protection clause prohibits arbitrary differences in treatment given to state prisoners held for more than 90 days after sentencing in local jails and that accorded similarly situated inmates in state facilities. Hill v. Hutto, 537 F. Supp. 1185, 1982 U.S. Dist. LEXIS 12085 (E.D. Va. 1982).

A state prisoner should not be subject to substantially worse conditions of confinement merely because the Virginia Department of Corrections happens to place him in a local jail, rather than in a state institution; such a treatment differential qualifies as arbitrary. Hill v. Hutto, 537 F. Supp. 1185, 1982 U.S. Dist. LEXIS 12085 (E.D. Va. 1982).

“Receiving unit.” —

When read in conjunction with the statute, it appears that a “receiving unit” is merely a generic term for the facility where a person is first “received” into Department of Corrections custody; it does not refer to the specific facility where a person is assigned to serve his or her sentence. Duhart v. Commonwealth, 2019 Va. App. LEXIS 256 (Va. Ct. App. Nov. 12, 2019).

Any failure of the Virginia Department of Corrections (VDOC) to transfer defendant from local jail to state prison amounted only to a mere procedural violation which did not implicate the Due Process Clause; assuming that this section did mandate that all felons be transferred from local jail into the custody of the VDOC within sixty days of conviction, such requirement is only a procedural device governing the location of a prisoner. For constitutional purposes, confinement is confinement, whether it be in a local jail, state prison, another state’s prison, or federal prison. Counts v. Newhart, 951 F. Supp. 579, 1996 U.S. Dist. LEXIS 18235 (E.D. Va. 1996), aff'd, 116 F.3d 1473, 1997 U.S. App. LEXIS 22052 (4th Cir. 1997).

Precise equality between long-term felons held in Commonwealth and local jails is not required; only substantial equality is mandated. Hill v. Hutto, 537 F. Supp. 1185, 1982 U.S. Dist. LEXIS 12085 (E.D. Va. 1982).

City jails are not required to adopt the Virginia Department of Corrections procedural regulations when holding a long-term felon for the Commonwealth, as their application would not further the felon’s equal protection rights and would constitute an undue intrusion into the jail’s administration. Hill v. Hutto, 537 F. Supp. 1185, 1982 U.S. Dist. LEXIS 12085 (E.D. Va. 1982).

But the Virginia Department of Corrections has sufficient authority to compel local jails to comply with its substantive regulations in holding long-term felons. Hill v. Hutto, 537 F. Supp. 1185, 1982 U.S. Dist. LEXIS 12085 (E.D. Va. 1982).

Delays in classification for state prisoners held in the city jail must be no longer than those encountered by inmates of state facilities. Hill v. Hutto, 537 F. Supp. 1185, 1982 U.S. Dist. LEXIS 12085 (E.D. Va. 1982).

Privileges, opportunities, etc., of long-term felons in local jails. —

The Virginia Department of Corrections must provide long-term felons held in local jails with all of the work opportunities mandated by state law and VDOC regulations, as well as the same technical training, visitation privileges, recreation opportunities, and counseling services, and equalize the overcrowding. Hill v. Hutto, 537 F. Supp. 1185, 1982 U.S. Dist. LEXIS 12085 (E.D. Va. 1982).

Inmates sentenced to state incarceration who remained placed in a county jail more than 60 days after their sentences were imposed, rather than being transferred to state facilities, had no equal protection claim arising from the allegedly inferior conditions of their confinement, as compared to state facilities, because they were not similarly situated to those housed in state facilities, and if they were similarly situated to those housed in state facilities, they were not a suspect class, their incarceration status was not an immutable characteristic, nor an invidious basis of classification, and there was a rational relationship between their confinement in a local facility and the legitimate state interests of relieving overcrowding in state facilities and preserving uniformity of treatment between inmates who were incarcerated together. Khaliq v. Angelone, 72 Fed. Appx. 895, 2003 U.S. App. LEXIS 14548 (4th Cir. 2003).

CIRCUIT COURT OPINIONS

Procedural violation not a vehicle for constitutional relief. —

Because the time limit in subsection B of § 53.1-20 for transferring prisoners from a county jail to the state prison was merely a procedural device, it was not a vehicle for Constitutional relief; therefore, defendant’s petition for a writ of mandamus was dismissed. Commonwealth v. Wade, 64 Va. Cir. 339, 2004 Va. Cir. LEXIS 75 (Fairfax County Apr. 7, 2004).

OPINIONS OF THE ATTORNEY GENERAL

Medical costs. —

Compensation Board is required to reimburse local correctional facilities for the medical costs of all inmates who are “State Responsible” while those inmates are in the temporary custody of a local correctional facility, beginning on the sixty-first day after notice of the commitment order is provided. See opinion of Attorney General to The Honorable C.T. Woody, Jr., Sheriff, City of Richmond, 15-079, 2016 Va. AG LEXIS 16 (9/1/16).

Change of sentences from death to life imprisonment is self-executing. —

Following the abolishment of the death penalty, the Virginia Department of Corrections is required to administratively recalculate the sentences of inmates sentenced to death to reflect the change to life imprisonment according to the provisions of the law. See opinion of Attorney General to Harold W. Clarke, Director, Virginia Department of Corrections, 21-026, 2021 Va. AG LEXIS 31 (11/19/21).

§ 53.1-20.1. Compensation of local jails for cost of incarceration.

If the Director is unable to accommodate in a state correctional facility any convicted felon sentenced to the Department for a felony committed before January 1, 1995, whose sentence totals more than two years or who is convicted of a felony committed on or after January 1, 1995, and who is required to serve a total period of one year or more in a state correctional facility, the Department of Corrections shall compensate local jails for the cost of incarceration as provided for in the general appropriation act beginning on the sixty-first day following the date of mailing by certified letter or electronic transmittal by the clerk of the committing court to the Director of the final order.

History. 1982, c. 680; 1990, cc. 676, 768; 1994, 2nd Sp. Sess., cc. 1, 2; 1997, c. 775.

The number of this section was assigned by the Virginia Code Commission. The section was enacted as the last sentence of former § 53-21.1.

Editor’s note.

Acts 1990, c. 676, cl. 2, and c. 768, cl. 2, provide: “That the Secretary of Public Safety shall develop by July 1, 1991, a plan for the orderly implementation of the transfer of responsibility for certain felons from state to local correctional authorities and for the transfer of felons between state and local correctional facilities as required by this act. Such plan shall provide for maintenance of current efforts to transfer prisoners with sentences of more than two years into state correctional facilities.”

The 1997 amendment rewrote this section.

OPINIONS OF THE ATTORNEY GENERAL

Medical costs. —

Compensation Board is required to reimburse local correctional facilities for the medical costs of all inmates who are “State Responsible” while those inmates are in the temporary custody of a local correctional facility, beginning on the sixty-first day after notice of the commitment order is provided. See opinion of Attorney General to The Honorable C.T. Woody, Jr., Sheriff, City of Richmond, 15-079, 2016 Va. AG LEXIS 16 (9/1/16).

§ 53.1-21. Transfer of prisoners into and between state and local correctional facilities.

  1. Any person who (i) is accused or convicted of an offense (a) in violation of any county, city, or town ordinance within the Commonwealth, (b) against the laws of the Commonwealth, or (c) against the laws of any other state or country or (ii) is a witness held in any case in which the Commonwealth is a party and who is confined in a state or local correctional facility may be transferred by the Director, subject to the provisions of § 53.1-20 , to any other state or local correctional facility which he may designate.
  2. The following limitations shall apply to the transfer of persons into the custody of the Department:
    1. No person convicted of violating § 20-61 shall be committed or transferred to the custody of the Department.
    2. No person who is convicted of a misdemeanor or a felony and receives a jail sentence of 12 months or less shall be committed or transferred to the custody of the Department without the consent of the Director.
    3. Beginning July 1, 1991, and subject to the provisions of § 53.1-20 , no person, whether convicted of a felony or misdemeanor, shall be transferred to the custody of the Department when the combined length of all sentences to be served totals two years or less, without the consent of the Director.

History. Code 1950, §§ 19.2-310.1 , 53-19.17, 53-84, 53-103, 53-135.1; Code 1950, § 53-8; 1952, c. 557; 1960, c. 432; 1962, c. 326; 1968, c. 357; 1970, c. 648; 1971, Ex. Sess., c. 110; 1972, c. 573; 1973, cc. 330, 342; 1974, cc. 44, 45; 1976, cc. 287, 462; 1982, c. 636; 1990, cc. 676, 768; 1999, cc. 945, 987; 2021, Sp. Sess. I, c. 463.

The 1999 amendments.

The 1999 amendments by cc. 945 and 987 are identical, and substituted “(§ 46.2-355.1 et seq.)” for “(§ 46.2-351 et seq.)” in subsection B 2.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 463, effective July 1, 2021, in subsection A, redesignated clauses (1) and (2) as clauses (i) and (ii); deleted former subdivision B 2, which read: “No person who is convicted of any violation pursuant to Article 9 (§ 46.2-355.1 et seq.) of Chapter 3 of Title 46.2 shall be committed or transferred to the custody of the Department without the consent of the Director” and redesignated former subdivisions B 3 and 4 as subdivisions B 2 and 3.

Law Review.

For article on due process implications of prison transfers, see 16 U. Rich. L. Rev. 583 (1982).

For note on prison overcrowding as cruel and unusual punishment, see 16 U. Rich. L. Rev. 621 (1982).

CASE NOTES

Editor’s note.

Most of the cases annotated below were decided under prior law.

A prisoner has no right or expectancy to be assigned to any particular institution. Peterson v. Davis, 421 F. Supp. 1220, 1976 U.S. Dist. LEXIS 13025 (E.D. Va. 1976), aff'd, 562 F.2d 48 (4th Cir. 1977).

Nor to remain in a particular prison. —

Under Virginia law, prisoners have no liberty interest in remaining in a particular prison. Ward v. Johnson, 437 F. Supp. 1053, 1977 U.S. Dist. LEXIS 13537 (E.D. Va. 1977).

State prisoner’s liberty interest in remaining in a particular correctional facility was not protected by the Due Process Clause of the Fourteenth Amendment because the Director of the Virginia Department of Corrections had the authority to transfer inmates into and between correctional facilities. Lamp v. Wallace, No. 3:04CV317, 2005 U.S. Dist. LEXIS 43932 (E.D. Va. Mar. 23, 2005), aff'd, 205 Fed. Appx. 151, 2006 U.S. App. LEXIS 25472 (4th Cir. 2006).

Equal protection does not require the Virginia Department of Corrections to transfer all felons into Commonwealth facilities from local jails, as such transfer is strictly within the discretion of the department and cannot be demanded by prisoners. Hill v. Hutto, 537 F. Supp. 1185, 1982 U.S. Dist. LEXIS 12085 (E.D. Va. 1982).

When the Virginia Department of Corrections (VDOC) holds an inmate in a local jail more than 90 days, it is leasing a prison space from the local government, which is permissible as long as the VDOC treats the leased space as part of the state correctional system and requires the local authorities to confine the prisoner in accordance with the substantive regulations applying to inmates of state facilities. Hill v. Hutto, 537 F. Supp. 1185, 1982 U.S. Dist. LEXIS 12085 (E.D. Va. 1982).

OPINIONS OF THE ATTORNEY GENERAL

Medical costs. —

Compensation Board is required to reimburse local correctional facilities for the medical costs of all inmates who are “State Responsible” while those inmates are in the temporary custody of a local correctional facility, beginning on the sixty-first day after notice of the commitment order is provided. See opinion of Attorney General to The Honorable C.T. Woody, Jr., Sheriff, City of Richmond, 15-079, 2016 Va. AG LEXIS 16 (9/1/16).

§ 53.1-22. Misdemeanant suspected of having contagious disease.

Whenever any court shall have reason to believe that a person convicted by it of a misdemeanor who is sentenced to serve time in a local correctional facility is afflicted with any contagious or infectious disease dangerous to the public health, the court shall have such person examined by a licensed physician or licensed nurse practitioner. If the examination reveals the person is afflicted with such disease, the court may commit the person directly to the Department.

History. Code 1950, § 53-89; 1970, c. 648; 1974, cc. 44, 45; 1982, c. 636; 2004, c. 855.

Editor’s note.

Acts 2004, c. 855, cl. 2 provides: “That this act shall take effect 60 days following the effective date of the regulations promulgated by the Board of Medicine and Board of Nursing required by the third enactment clause of this act.” Emergency regulations took effect July 15, 2004.

Acts 2004, c. 855, cl. 3 provides: “That the Board of Medicine and Board of Nursing shall amend regulations governing the licensure of nurse practitioners to be effective within 280 days of enactment of this act. Such amendments shall require inclusion of the nurse practitioner’s authority for signatures, certifications, stamps, verifications, affidavits and endorsements in the written protocol between the supervising physician and the nurse practitioner.”

The 2004 amendments.

The 2004 amendment by c. 855 inserted “or licensed nurse practitioner.” For effective date, see Editor’s note.

§ 53.1-23. Fingerprints, photographs and description.

  1. Photographs, fingerprints, and a description of each person received by the Department shall be taken and filed for identification purposes. If the person is serving a sentence for an offense for which a report to the Central Criminal Records Exchange is required under subsection A of § 19.2-390 , such photographs, fingerprints, and description of such person received by the Department shall be provided to the Central Criminal Records Exchange and, unless otherwise prohibited by law, may be classified and filed as part of the criminal history record information of that person. Subject to the provisions of §§ 19.2-387 through 19.2-392 , the Department shall cooperate with federal, state, county, and city law-enforcement agencies, insofar as it may deem proper, in disclosing information concerning such persons and in the taking of fingerprints and photographs of persons charged with the commission of an offense for which a report to the Central Criminal Records Exchange is required under subsection A of § 19.2-390 .
  2. The Department shall review each person’s criminal history record at least 60 days prior to his scheduled release from a state correctional facility to determine whether all offenses for which that person has been committed appear on such record and, if any such offense that is required to be reported to the Central Criminal Records Exchange pursuant to § 19.2-390 does not appear, (i) take and provide fingerprints and a photograph of the person to the Central Criminal Records Exchange to be classified and filed as part of the criminal history record information pursuant to subsection D of § 19.2-390 and (ii) provide written or electronic notification to the Central Criminal Records Exchange within the Department of State Police that such offense does not appear on the offender’s criminal history record.

History. Code 1950, § 53-40; 1970, c. 648; 1982, c. 636; 2019, cc. 782, 783.

The 2019 amendments.

The 2019 amendments by cc. 782 and 783 are identical, and designated the existing provisions as subsection A and added subsection B; in subsection A inserted the second sentence and substituted “an offense for which a report to the Central Criminal Records Exchange is required under subsection A of § 19.2-390 ” for “a felony” in the third sentence.

§ 53.1-23.1. Repealed by Acts 1990, c. 669.

§ 53.1-23.2. Department to give notice of the receipt of certain prisoners.

  1. At the time of receipt of any prisoner for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, the Department shall obtain from that person all necessary registration information, including fingerprints and photographs of a type and kind approved by the Department of State Police. A person required to register shall register and submit to be photographed as part of the registration. The Department shall forthwith forward the registration information and photograph to the Department of State Police on the date of the receipt of the prisoner.
  2. Whenever a person required to register has failed to comply with the provisions of subsection A, the Department shall promptly investigate or request the State Police promptly investigate and, if there is probable cause to believe a violation has occurred, obtain a warrant or assist in obtaining an indictment charging a violation of § 18.2-472.1 in the jurisdiction in which the person was received. The Department shall notify the State Police forthwith of such actions taken pursuant to this section.

History. 2006, cc. 857, 914.

§ 53.1-24. Record of convictions and register to be kept.

The Director shall file and preserve a copy of the judgment furnished by the clerk of the court of conviction of each prisoner and keep a register describing the term of his confinement, for what offense, and when received into a state correctional facility. The Director may dispose of these records with the consent of The Library of Virginia in accordance with retention regulations for records maintained by the Department established under the Virginia Public Records Act (§ 42.1-76 et seq.).

History. Code 1950, § 53-24; 1982, c. 636; 1994, c. 64; 2020, c. 759.

The 2020 amendments.

The 2020 amendment by c. 759 deleted “the Board and” preceding “The Library of Virginia” in the second sentence.

OPINIONS OF THE ATTORNEY GENERAL

Change of sentences from death to life imprisonment is self-executing. —

Following the abolishment of the death penalty, the Virginia Department of Corrections is required to administratively recalculate the sentences of inmates sentenced to death to reflect the change to life imprisonment according to the provisions of the law. See opinion of Attorney General to Harold W. Clarke, Director, Virginia Department of Corrections, 21-026, 2021 Va. AG LEXIS 31 (11/19/21).

§ 53.1-25. Director to prescribe rules; rules to be available to prisoners.

The Director may prescribe rules for the preservation of state property and the health of prisoners in state correctional facilities and for the government thereof. Printed copies of all such rules shall be made available to prisoners under such terms and conditions as the Director may prescribe.

History. Code 1950, § 53-23; 1970, c. 648; 1977, c. 354; 1982, c. 636.

CASE NOTES

This section does not mandate prisoner access to rules deemed confidential by the director. Castle v. Jallah, 142 F.R.D. 618, 1992 U.S. Dist. LEXIS 11538 (E.D. Va. 1992).

Since a Virginia inmate’s entitlement to possess personal property is always subject to the absolute discretion of the corrections department director, inmate could not establish a possessory interest in his typewriter, which was protected by the Due Process Clause. Wenzler v. Warden of G.R.C.C., 949 F. Supp. 399, 1996 U.S. Dist. LEXIS 18939 (E.D. Va. 1996).

§ 53.1-25.1. Rules of state correctional facilities.

  1. The Director shall prescribe rules for state correctional facilities to ensure that when physical contact is required between an officer and an inmate and when the inmate is required by circumstances to disrobe, to the greatest extent possible, the officer shall be the same gender as the inmate. However, such rules may allow for the suspension of the provisions of this subsection during the period of a declared emergency.
  2. When contact is required between an officer and an inmate and when the inmate is required by circumstances to disrobe and the officer is not the same gender as the inmate, the officer involved shall submit a written report to the warden or other official in charge of the state correctional facility within 72 hours following the incident, containing the justification for the suspension of the provisions of subsection A.

History. 2000, c. 807; 2020, c. 526.

Effective date.

This section is effective April 9, 2000.

The 2020 amendments.

The 2020 amendment by c. 526 added subsection B; redesignated the first paragraph as subsection A; and in subsection A, inserted “to the greatest extent possible” in the first sentence and made stylistic changes.

§ 53.1-26. Confiscation of prohibited articles.

Any item of personal property which a prisoner in any state correctional facility is prohibited from possessing by the Code of Virginia or by the rules of the Director shall, when found in the possession of a prisoner, be confiscated and sold or destroyed as the Director may direct. Any funds from the sale of such property shall be invested and used as provided in § 53.1-44 .

History. Code 1950, § 53-23.1; 1968, c. 222; 1982, c. 636.

Michie’s Jurisprudence.

For related discussion, see 14B M.J. Prisons and Prisoners, § 8.

CASE NOTES

Editor’s note.

The cases annotated below were decided under former § 53-23.1.

Constitutionality. —

When statutory authority permits a forfeiture of property the possession of which is unauthorized, no constitutional violation occurs. Hanvey v. Blankenship, 631 F.2d 296, 1980 U.S. App. LEXIS 13687 (4th Cir. 1980).

Intent. —

The general intent of this section was to allow prison officials to regulate personal property within penal institutions. Hanvey v. Blankenship, 474 F. Supp. 1349, 1979 U.S. Dist. LEXIS 10312 (W.D. Va. 1979), aff'd, 631 F.2d 296, 1980 U.S. App. LEXIS 13687 (4th Cir. 1980).

Directive is discretionary. —

The directive to sell or destroy contraband is viewed as discretionary and not mandatory. Hanvey v. Blankenship, 474 F. Supp. 1349, 1979 U.S. Dist. LEXIS 10312 (W.D. Va. 1979), aff'd, 631 F.2d 296, 1980 U.S. App. LEXIS 13687 (4th Cir. 1980).

Confiscation and disposal of money upheld. —

The confiscation of $750.00 from a prisoner by prison officials during a routine shakedown and the disposal of the money by turning it over to an “Inmate Canteen Fund” for the benefit of the entire prisoner population did not violate this section or the prisoner’s constitutional rights. Hanvey v. Blankenship, 474 F. Supp. 1349, 1979 U.S. Dist. LEXIS 10312 (W.D. Va. 1979), aff'd, 631 F.2d 296, 1980 U.S. App. LEXIS 13687 (4th Cir. 1980).

§ 53.1-27. Establishment of stores in state correctional facilities.

The Director is hereby authorized to provide for the establishment and operation of stores or commissaries in state correctional facilities to deal in such articles as he deems proper. The profits from the operation of such stores shall be used for educational, recreational, pre-release and post-release reentry and transition services, or other purposes beneficial to the inmate population as may be prescribed by the Director.

History. Code 1950, § 53-19.9; 1974, cc. 44, 45; 1982, c. 636; 1996, cc. 28, 230; 2004, c. 417.

The 2004 amendments.

The 2004 amendment by c. 417 inserted “pre-release and post-release reentry and transition services” near the middle in the second sentence.

§ 53.1-28. Authority to fix discharge date; improper release; warrant, arrest and hearing.

For the purpose of scheduling and providing a uniform, effective and continual program of pre-release training and conditioning of prisoners, the Director shall have authority to discharge any prisoner within the Virginia penal system on any day within a period of 30 days prior to the date upon which such prisoner’s term would normally expire. The Director shall provide each prisoner with the following documents upon discharge: (i) verification of the prisoner’s work history while in custody; (ii) certification of all educational and treatment programs completed by the prisoner while in custody; and (iii) a copy of his medical records, so long as such prisoner requests a copy of his records at least 60 days prior to the date upon which the prisoner’s term would expire. The Department shall develop procedures wherein the records are to be made available to the prisoner in a safe and secure manner.

The Director or his designee upon the discovery of an improper release or discharge of a prisoner from custody shall report such release or discharge to the circuit court of the jurisdiction wherein the prisoner was released or discharged. The circuit court shall then issue a warrant for the arrest of the prisoner which may be executed by any duly sworn correctional officer or law-enforcement officer. Such warrant shall direct that the prisoner be presented forthwith to the court to determine the propriety of the original discharge or release. After a hearing, if the court is satisfied that the release or discharge was made improperly, the prisoner shall be returned to the state correctional facility from which he was released or discharged, or to any other correctional facility designated by the Director to serve the remainder of his sentence.

History. Code 1950, § 53-37; 1964, c. 140; 1968, c. 303; 1982, c. 636; 2006, cc. 108, 132.

The 2006 amendments.

The 2006 amendment by c. 108, in the first paragraph, added the last sentence [clauses (i) and (ii)].

The 2006 amendment by c. 132, in the first paragraph, inserted the second sentence [now clause (iii)] and added the last sentence.

The section is set out in the form above at the direction of the Virginia Code Commission.

§ 53.1-29. Authority for correctional officers and other employees to carry weapons.

It shall be lawful for any correctional officer and any noncustodial employee who has been designated by the Director of the Department, and who has completed the basic course in firearms for correctional officers as approved by the Department of Criminal Justice Services, to carry and use sufficient weapons to prevent escapes, suppress rebellion, and defend or protect himself or others in the course of his assigned duties.

History. Code 1950, § 53-39; 1970, c. 648; 1979, c. 642; 1982, c. 636; 1984, c. 720; 1996, cc. 804, 838.

Cross references.

As to authority of employees of the Department of Transportation appointed to act as guards of prisoners at work on the roads to carry firearms in accordance with this section, see § 53.1-58 .

As to carrying of concealed weapons, see § 18.2-308 .

§ 53.1-30. Who may enter interior of state correctional facilities; searches of those entering.

  1. The Governor and members of the General Assembly may go into the interior of any state correctional facility. Attorneys shall be permitted in the interior of a state correctional facility to confer with prisoners who are their clients and with prisoners who are witnesses in cases in which they are involved. The Director shall prescribe the time and conditions on which attorneys and other persons may enter any state correctional facility.
  2. The Department shall promulgate a policy to assist a person who was a victim of a crime committed by an offender incarcerated in any state correctional facility to visit with such offender. Such policy may include provisions necessary to preserve the safety and security of those at such visit and the good order of the facility, including consideration of the offender’s security level, crime committed, and institutional behavior of the offender. The Department shall make whatever arrangements are necessary to effectuate such a visit. This subsection shall not apply to juvenile victims.
  3. Any person seeking to enter the interior of any state correctional facility shall be subject to a search of his person and effects, as provided in § 53.1-1.2 . Such search shall be performed in a manner reasonable under the circumstances and may be a condition precedent to entering a correctional facility. However, no child under the age of 18 shall be strip searched or subjected to a search of any body cavity under any circumstances.
  4. The Department may not permanently ban any person, or insinuate that any person will be permanently banned, from seeking entrance to a state correctional facility on the basis of such person’s refusal to consent to a strip search or a search of any body cavity when such person is seeking to enter the interior of any state correctional facility. If a person refuses to consent to a strip search or a search of any body cavity when such person is seeking to enter the interior of any state correctional facility, the Department may deny such person entry to the facility, unless otherwise provided by law, but may not deny such person any future entry on the basis of a prior refusal to consent.

History. Code 1950, § 53-60.1; 1970, c. 648; 1978, c. 306; 1982, c. 636; 2010, c. 844; 2020, cc. 759, 1170, 1181.

Cross references.

As to establishment of victim-offender reconciliation program, see § 19.2-11.4 .

The 2010 amendments.

The 2010 amendment by c. 844 inserted subsection B and redesignated former subsection B as subsection C.

The 2020 amendments.

The 2020 amendment by c. 759, in subsection A, deleted “and members of the Board of Corrections” preceding “may go” in the first sentence and “subject to approval of the Board” preceding “the time” in the last sentence and made stylistic changes.

The 2020 amendments by cc. 1170 and 1181 are nearly identical and added the last sentence of subsection C and added subsection D. Acts 2020, c. 1170 also added “as provided in § 53.1-1.2 ” at the end of the first sentence of subsection C.

CASE NOTES

Statute of limitations. —

Trial court properly granted a plea of the statute of limitations in an arrestee’s suit seeking damages resulting from an allegedly improper body cavity search because the arrestee was “confined” within the meaning of § 8.01-243.2 , and the body cavity search related to the conditions of her confinement. Bing v. Haywood, 283 Va. 381 , 722 S.E.2d 244, 2012 Va. LEXIS 40 (2012).

§ 53.1-31. Sale or lease of gas, oil, or minerals.

The Director is empowered to make and execute contracts, easements and leases in the name of the Commonwealth for the removal or mining of gas, oil or any valuable minerals that may be found in any real estate, title of which is vested in the Department, whenever it appears to the Department that it will be in the best interest of the Commonwealth to make such disposition of such gas, oil or minerals. Before a contract, easement or lease is made, the same shall be approved by the Governor, and any contract, easement or lease shall be approved as to form by the Attorney General.

Bids therefor shall be received after notice by publication once a week for four successive weeks in at least two newspapers of general circulation. The Director shall have the right to reject any or all bids and to readvertise for bids. The accepted bidder shall give bond with good and sufficient surety to the satisfaction of the Director and in such amount as he may fix for the faithful performance of all the conditions and covenants of such contract, easement or lease.

Each such contract, easement or lease may be for a period not exceeding five years, may include the right to renew the same for an additional period not exceeding five years each and shall specify the rent royalties and other terms deemed expedient and proper. Such contracts, easements and leases may, in addition to any other rights, authorize the grantees and lessees to prospect for and take from the real estate oil, gas and such other minerals as are therein specified. No such contract, easement or lease shall in any way affect or interfere with the orderly operation of any state correctional facility. All rents or royalties collected from such contracts, easements or leases shall be paid into the state treasury to the credit of the general fund.

History. Code 1950, § 53-19.38:1; 1978, c. 474; 1982, c. 636; 1984, c. 734; 1989, c. 733; 2020, c. 759.

The 2020 amendments.

The 2020 amendment by c. 759, in the first paragraph, deleted “with the approval of the Board” following “The Director” and substituted “Department” for “Board” twice in the first sentence and made stylistic changes.

§ 53.1-31.1. Transportation of prisoners.

  1. Notwithstanding any other provision of law, the Department shall provide all transportation to and from court for any prisoner in connection with a crime committed within a state correctional facility, or a facility operated pursuant to the Corrections Private Management Act (§ 53.1-261 et seq.), unless the affected sheriff and the Department agree on other transportation. Auxiliary police forces established under § 15.2-1731 who have met the training requirements of § 9.1-102 , with the concurrence of the sheriff or other chief law-enforcement officer as appropriate, are specifically authorized to provide such transportation.
  2. Authorized corrections personnel from any other state, the United States, and any political subdivisions thereof who transport a prisoner through the Commonwealth, deliver a prisoner to the Commonwealth, or take custody of a prisoner in the Commonwealth for transport to another jurisdiction are deemed to have lawful custody of such prisoner while in the Commonwealth.
  3. Authorized Virginia corrections personnel who have a need to travel with a prisoner through or to another state are authorized to travel through such state and retain authority over such prisoner as allowed by such state.

History. 2002, c. 240; 2003, c. 154; 2012, c. 827; 2015, c. 99.

The 2003 amendments.

The 2003 amendment by c. 154 added the last sentence.

The 2012 amendments.

The 2012 amendment by c. 827, effective April 18, 2012, substituted “§ 9.1-102 ” for “§ 9.1-101 ” in the second sentence.

The 2015 amendments.

The 2015 amendment by c. 99 added the subsection A designation and added subsections B and C.

§ 53.1-31.2. Notification of child support due by a prisoner.

The Department of Corrections shall cooperate with the Division of Child Support Enforcement to provide at regular intervals, but at least annually, a list of persons incarcerated. Upon receipt of such list, the Division shall identify those prisoners who are the subject of a court or administrative order requiring them to pay child support and the amount of each prisoner’s obligation. The Division shall then inform the Department of the prisoners owing child support payments and the Department may inform the prisoner upon his reentry the amount of his arrearage.

History. 2008, c. 763.

§ 53.1-31.3. Notification of incarcerated individuals ineligible for public assistance.

The Department shall, at regular intervals but at least monthly, provide the Department of Social Services with a list of all individuals committed to the custody of the Department of Corrections during the preceding month, to facilitate identification of prisoners who were receiving public assistance benefits prior to commitment to the custody of the Department and who may, as a result of their incarceration, be ineligible to receive such benefits.

History. 2013, c. 218.

§ 53.1-31.4. Department of Corrections-issued identification.

Prior to the release or discharge of any prisoner who has been confined for at least 90 days and does not possess a government-issued identification card, birth certificate, and Social Security card, the Department shall provide the assistance necessary for such prisoner to apply for and obtain such identification and documents prior to his release or discharge, provided that the Department has or can readily obtain all records and information necessary for their issuance. If the prisoner is unable to obtain a government-issued identification card prior to his release or discharge, the Department shall provide the prisoner with a Department of Corrections Offender Identification form. If the Department receives a government-issued identification card, birth certificate, or Social Security card for a prisoner after his release or discharge, the Department shall forward such identification or document to the prisoner. Unless the prisoner is determined to be indigent pursuant to § 19.2-159 , all costs and fees associated with applying for and obtaining any identification or documents pursuant to this section shall be paid by the prisoner.

History. 2020, cc. 484, 523.

Article 2. Treatment and Privileges of Prisoners.

§ 53.1-32. Treatment and control of prisoners; recreation; religious services.

  1. It shall be the general purpose of the state correctional facilities to provide proper employment, training and education in accordance with this title, medical and mental health care and treatment, discipline and control of prisoners committed or transferred thereto. The health service program established to provide medical services to prisoners shall provide for appropriate means by which prisoners receiving nonemergency medical services may pay fees based upon a portion of the cost of such services. In no event shall any prisoner be denied medically necessary service due to his inability to pay.
  2. The Department of Corrections shall establish and maintain a treatment program for prisoners convicted pursuant to Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 and committed to its custody. The program shall include a clinical assessment of all such prisoners upon receipt into the custody of the Department of Corrections and the development of appropriate treatment plans, if indicated. A licensed psychiatrist or licensed clinical psychologist who is experienced in the diagnosis, treatment, and risk assessment of sex offenders shall oversee the program and the program shall be administered by a licensed psychiatrist, licensed clinical psychologist, or a licensed mental health professional who is a certified sex offender treatment provider as defined in § 54.1-3600 .
  3. The Director shall provide a program of recreation for prisoners. The Director may establish, with consultation from the Department of Behavioral Health and Developmental Services, a comprehensive substance abuse treatment program which may include utilization of acupuncture and other treatment modalities, and may make such program available to any prisoner requiring the services provided by the program.
  4. The Director or his designee who shall be a state employee is authorized to make arrangements for religious services for prisoners at times as he may deem appropriate. When such arrangements are made pursuant to a contract or memorandum of understanding, the final authority for such arrangements shall reside with the Director or his designee.

History. Code 1950, §§ 53-33, 53-94; 1970, c. 648; 1982, c. 636; 1992, c. 740; 1993, c. 768; 1995, cc. 766, 821; 1998, c. 798; 2009, cc. 740, 813, 840; 2010, c. 261; 2012, cc. 803, 835; 2020, c. 759.

Editor’s note.

Acts 1993, c. 768, which amended this section, in cl. 3 provided that the provisions of the 1993 act would become effective if sufficient funds were appropriated to implement the provisions of this act. Acts 1993, c. 994, item 457 provided funds to begin implementation.

The 1998 amendment inserted the subsection A, B, and C designations, and in subsection C, in the first sentence, inserted “or his designee who shall be a state employee,” and added the second sentence.

The 2009 amendments.

The 2009 amendment by c. 740 inserted subsection B and redesignated former subsections B and C as subsections C and D, respectively.

The 2009 amendments by cc. 813 and 840 are identical, and substituted “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse” in subsection C.

The 2010 amendments.

The 2010 amendment by c. 261 in subsection B, substituted “Department of Corrections” for “Director” and “its custody” for “the custody of the Department of Corrections” in the first sentence, deleted the former third sentence, which read: “The program shall be operated under the direction of a licensed psychiatrist or licensed clinical psychologist who is experienced in the diagnosis, treatment, and risk assessment of sex offenders,” and added the last sentence.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 99, are identical, and substituted “this title” for “Chapter 18 (§ 22.1-339 et seq.) of Title 22.1 and § 53.1-32.1 ” in the first sentence of subsection A.

The 2020 amendments.

The 2020 amendment by c. 759 deleted the former last sentence in subsection A, which read: “The Board shall promulgate regulations governing such a program.”

Law Review.

For note, “Decency and Fairness: An Emerging Judicial Role in Prison Reform,” see 57 Va. L. Rev. 841 (1971).

For article, “Professional Correctional Management Operating a Death Row Population: Putting Theory into Practice,” see 73 Wash. & Lee L. Rev. 1189 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Medical costs. —

Compensation Board is required to reimburse local correctional facilities for the medical costs of all inmates who are “State Responsible” while those inmates are in the temporary custody of a local correctional facility, beginning on the sixty-first day after notice of the commitment order is provided. See opinion of Attorney General to The Honorable C.T. Woody, Jr., Sheriff, City of Richmond, 15-079, 2016 Va. AG LEXIS 16 (9/1/16).

§ 53.1-32.01. Payment for bodily injury.

The Director is authorized to establish administrative procedures for recovering from an inmate the cost for medical treatment of a bodily injury that is inflicted intentionally on any person by the inmate. Such administrative procedures shall ensure that the inmate is afforded due process.

History. 1997, c. 125; 2020, c. 759.

The 2020 amendments.

The 2020 amendment by c. 759 substituted “Director” for “Board” in the first sentence.

Michie’s Jurisprudence.

For related discussion, see 14B M.J. Prisons and Prisoners, § 10.

§ 53.1-32.1. Classification system; program assignments; mandatory participation.

  1. The Director shall maintain a system of classification which (i) evaluates all prisoners according to background, aptitude, education, and risk and (ii) based on an assessment of needs, determines appropriate program assignments including career and technical education, work activities and employment, academic activities which at a minimum meet the requirements of § 66-13.1 , counseling, alcohol and substance abuse treatment, and such related activities as may be necessary to assist prisoners in the successful transition to free society and gainful employment.
  2. The Director shall, subject to the availability of resources and sufficient program assignments, place prisoners in appropriate full-time program assignments or a combination thereof to satisfy the objectives of a treatment plan based on an assessment and evaluation of each prisoner’s needs. Compliance with specified program requirements and attainment of specific treatment goals shall be required as a condition of placement and continuation in such program assignments. The Director may suspend programs in the event of an institutional emergency.
  3. For the purposes of implementing the requirements of subsection B, prisoners shall be required to participate in such programs according to the following schedule:
    1. From July 1, 1994, through June 30, 1995, an average of 24 hours per week.
    2. From July 1, 1995, through June 30, 1996, an average of 28 hours per week.
    3. From July 1, 1996, through June 30, 1997, an average of 30 hours per week.
    4. From July 1, 1997, through June 30, 1998, an average of 36 hours per week.
    5. From July 1, 1998, and thereafter, an average of 40 hours per week.
  4. Notwithstanding any other provision of law, prisoners refusing to accept a program assignment shall not be eligible for good conduct allowances or earned sentence credits authorized pursuant to Chapter 6 (§ 53.1-186 et seq.) of Title 53.1. Such refusal shall also constitute a violation of the rules authorized pursuant to § 53.1-25 and the Director shall prescribe appropriate disciplinary action.
  5. The Director shall maintain a master program listing, by facility and program location, of all available permanent and temporary positions. The Director may, consistent with § 53.1-43 , establish a system of pay incentives for such assignments based upon difficulty and level of effort required.
  6. Inmates employed pursuant to Article 2 (§ 53.1-32 et seq.) of Chapter 2 of this title shall not be deemed employees of the Commonwealth of Virginia or its agencies and shall be ineligible for benefits under Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2, Chapter 6 (§ 60.2-600 et seq.) of Title 60.2, Chapter 5 (§ 65.2-500 et seq.) of Title 65.2 or any other provisions of the Code pertaining to the rights of state employees.

History. 1993, c. 768; 1994, 2nd Sp. Sess., cc. 1, 2; 2001, c. 483; 2012, cc. 803, 835; 2020, c. 759.

Editor’s note.

Acts 1993, c. 768, which enacted this section, in cl. 3 provides that the provisions of the 1993 act shall become effective if sufficient funds are appropriated to implement the provisions of this act. Acts 1993, c. 994, item 457 provides funds to begin implementation.

Acts 2001, c. 483, cl. 2, provides: “That this act shall not be construed to require any local school board to rename its vocational schools or programs or to require any public or private vocational school to change its name; however, any public school having in its name the terms vocational or vocational technical or any variation of these terms and designated by a local school board to be a vocational or vocational technical school shall comply with the relevant requirements for career and technical education set forth in Title 22.1 of the Code of Virginia and the applicable regulations.”

Acts 2001, c. 483, cl. 3, provides: “That nothing contained in this act shall be construed to require expenditure of funds to realign any name with the term ‘career and technical education’ or to require any redesigning or reprinting of any logo, stationery, informational material or website. In addition, any stationery, pamphlets or other printed material referring to vocational education or some other term denoting career and technical education requiring an eventual revision of a state program or name may continue to be used in the normal course of business until consumed before being redesigned and reprinted.”

Acts 2001, c. 483, cl. 4, provides: “That, further, whenever any references are used in the Code of Virginia to vocational education or to vocational technical education or, when used to denote an education program, to vocational rehabilitation or any other state or local program name that clearly relates to career and technical education within its context, such terms shall be deemed to be subsumed by, synonymous with and included in the term ‘career and technical education.’ ”

Acts 2001, c. 483, cl. 5, provides: “That this act shall not be construed to require any additional services or changes in services in any state or local program or to require any such program to deliver different services than are required by applicable law.”

Acts 2019, cc. 143 and 233 provides: Ҥ 1. The Board of Education shall review and revise its Career and Technical Education Work-Based Learning Guide (the Guide) to expand the opportunities available for students to earn credit for graduation through high-quality work-based learning experiences such as job shadowing, mentorships, internships, and externships. In performing such review, the Board shall consult with (i) stakeholders representing a variety of industries and (ii) organizations representing the business community and shall consider (a) the diversity of school divisions across the Commonwealth, (b) the need for local flexibility to establish credit-bearing work-based learning experiences through a variety of methods, and (c) the needs of industries across the Commonwealth.

“§ 2. The Board of Education shall complete its work to revise the Guide no later than December 1, 2019.”

The 2001 amendments.

The 2001 amendment by c. 483 substituted “career and technical education” for “vocational and technical” in subsection A.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 99, are identical, and updated the section reference in subsection A; and made minor stylistic changes in subsection C.

The 2020 amendments.

The 2020 amendment by c. 759 deleted “and subject to the approval of the Board” preceding “establish” in subsection E in the second sentence.

CASE NOTES

Prison officials violated Establishment Clause of First Amendment to United States Constitution by coercing prisoner, under threat of loss of good conduct allowances, to participate in a program that emphasized religion. Ross v. Keelings, 2 F. Supp. 2d 810, 1998 U.S. Dist. LEXIS 6244 (E.D. Va. 1998).

Constitutionality. —

The portion of this section permitting the Director of the Department of Corrections to use interest earned on the investment of funds belonging to prisoners for the benefit of the prisoners did not result in an unconstitutional taking without just compensation, where the interest was returned on a proportionate basis to the various correctional facilities and used by them to purchase items for the benefit of all prisoners, such as library books, newspaper and magazine subscriptions, recreation equipment, items for family visiting days and other collectively used “extras.” Washlefske v. Winston, 60 F. Supp. 2d 534, 1999 U.S. Dist. LEXIS 12893 (E.D. Va. 1999), aff'd, 234 F.3d 179, 2000 U.S. App. LEXIS 31171 (4th Cir. 2000).

CIRCUIT COURT OPINIONS

Improperly determined good conduct allowance. —

Where the correction department’s motion to dismiss did not reach all the merits of the inmate’s § 8.01-657 habeas corpus claims, specifically the claim that DOC’s improper determination of his good conduct allowance based in part upon his work release removal, it was denied. Fusilier v. Smith, 62 Va. Cir. 239, 2003 Va. Cir. LEXIS 307 (Loudoun County July 7, 2003).

§ 53.1-32.2. Reentry planning.

The Department shall develop and implement, in cooperation with and taking into account the individual needs and willingness to participate of the inmate, a comprehensive reentry plan for each person committed to the supervision of the Department, as soon as practicable, considering the prisoner’s anticipated release date. Such plan shall identify educational, vocational, therapeutic, and other programs necessary to prepare the person for successful transition from prison to society upon the person’s discharge and shall include mentor pairing to the extent possible. The Department shall coordinate any reentry programs provided through the Department pursuant to the reentry plan with any other reentry or other relevant programs offered by any public or private organization or entity at the local, state, or federal level, which are also included in the plan.

History. 2008, cc. 177, 402.

§ 53.1-33. Physical examination of prisoner; ability to work.

Each person received by the Department shall be examined by a licensed physician upon his arrival, within 30 days prior to any work assignment in food services, medical services, or cosmetological services or a change in work assignment, and at such other times thereafter as may be deemed necessary. The work that a prisoner is required to do shall be dependent upon the report of the physician as to his physical and mental capacity.

The warden, in consultation with the physician, may exclude prisoners, on a case-by-case basis, from work assignments based upon the classification of the institution and the safety and good order of the institution. Special consideration should be used in assigning any inmate with an infectious disease to assignments in food services, medical services, and cosmetological services.

History. Code 1950, § 53-47; 1970, c. 630; 1979, c. 700; 1982, c. 636; 2007, c. 591.

The 2007 amendments.

The 2007 amendment by c. 591, in the first paragraph, inserted “within 30 days prior to any work assignment in food services, medical services, or cosmetological services or a change in work assignment,” and “other” preceding “times thereafter as”; and added the second paragraph.

§ 53.1-33.1. Mandatory testing for human immunodeficiency virus.

The Department shall offer to test each inmate, who does not have a record of a positive test result, for infection with human immunodeficiency virus within 60 days of the scheduled discharge of the inmate from a state correctional facility. Prior to administering a test for human immunodeficiency virus, the Department shall inform, or cause to be informed, the inmate to be tested of the purpose of the test. Any inmate may choose not to be tested.

History. 2011, cc. 398, 415.

§ 53.1-34. Treatment of prisoner with contagious disease.

The Director may, upon the application of the person in charge of any state correctional facility who has been requested in writing so to do by the physician at such facility, have removed from such facility any prisoner therein who has contracted any contagious or infectious disease dangerous to the public health to some place to be designated by the Director. When any prisoner is so removed, he shall be safely kept and treated for such disease and, as soon as he recovers his health, be returned to such facility unless the term of his imprisonment has expired, in which event he shall be discharged, but not until all danger of his spreading contagion has passed. Expenses incurred by reason of this section shall be borne by the Commonwealth.

History. Code 1950, § 53-94; 1970, c. 648; 1979, c. 109; 1982, c. 636.

§ 53.1-35. Correspondence privileges; receipt of publications.

The Director is authorized to prescribe reasonable rules regarding correspondence privileges and the receipt of books, newspapers and periodicals by prisoners within state correctional facilities.

History. Code 1950, § 53-34; 1970, c. 648; 1982, c. 636.

§ 53.1-35.1. Electronic visitation and messaging with inmates; fees.

The Director is authorized to prescribe reasonable rules regarding electronic visitation systems or electronic messaging systems, including Voice-over-Internet Protocol technology and web-based communication systems, for communication between prisoners and third parties and collection of a fee for the system utilized. Any state correctional facility that utilizes such systems shall establish such system allowing for the security needs of the facility. Any state correctional facility that utilizes such system shall not prohibit in-person visitation.

This section does not apply to telephonic communication systems or to electronic video and audio communication systems used in judicial proceedings.

History. 2018, c. 66.

§ 53.1-35.2. Visitation of certain prisoners by minor dependents.

  1. The Director is authorized to prescribe reasonable rules regarding visitation that shall include authorization of visitation by minor dependents of prisoners who are primary caretakers of minor children with Level 1 or Level 2 security classifications that include (i) opportunities for dependent children under the age of 18 to visit their incarcerated primary caretakers at least twice per week unless an employee of the Department has a reasonable belief that the child (a) may be harmed during visitation or (b) poses a security risk due to a gang affiliation, prior conviction, or past violation of a correctional facility’s contraband policy; (ii) the elimination of restrictions on the number of dependent children under the age of 18 that may be permitted visitation privileges; and (iii) authorization for contact visits for prisoners who are primary caretakers of minor children.
  2. Nothing in this section shall prevent the Department from refusing visitation of a minor child based on an individualized determination by the Director, warden, or superintendent that such visitation presents security or operational risks.

History. 2020, c. 526.

§ 53.1-36. Prisoners may assist in medical research programs.

Subject to the provisions of Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1, the Director may permit such prisoners as may volunteer to undergo experimental treatment or tests in state or federal medical research programs.

History. Code 1950, § 53-57.1; 1962, c. 48; 1982, c. 636; 1992, c. 603.

§ 53.1-37. Furloughs generally; travel expenses; penalties for violations.

  1. The Director may extend the limits of confinement of any prisoner in any state correctional facility to permit him a furlough under the provisions of this section for the purpose of visiting his home or family. Such furlough shall be for a period to be prescribed by the Director or his designee, in his discretion, not to exceed three days in addition to authorized travel time. Except for furloughs permitted under subsection C, the time during which a prisoner is on furlough shall not be counted as time served against any sentence, and during any furlough, no earned sentence credits as defined in § 53.1-116 , good conduct allowance, or any other reduction of sentence shall accrue. The Director shall promulgate rules and regulations governing extension of limits of confinement hereunder.
  2. The Director may, when feasible, require the prisoner or his relatives to bear the travel expense required for such visit or a prescribed portion thereof. Such travel expense shall include all amounts necessarily expended for travel, food and lodging of such prisoner and any accompanying personnel of the Department during such furlough, and a per diem amount set by the Director to reimburse the Department for furnishing custodial personnel.
  3. The Director may permit a prisoner a furlough when the prisoner has been approved for release on parole by the Parole Board and 30 days or less remain to be served by the prisoner prior to his date of release on parole. Such a furlough shall not exceed 30 days.
  4. Any prisoner who willfully fails to remain within the limits of confinement set by the Director hereunder, or who willfully fails to return within the time prescribed to the place designated by the Director in granting such extension, shall be guilty of an escape and shall be subject to penalty as though he left the state correctional facility itself.
  5. Any prisoner who without authority or just cause fails to remain within the limits of confinement set by the Director hereunder, or who without authority or just cause fails to return within the time prescribed to the place designated by the Director in granting such extension, shall be guilty of a Class 2 misdemeanor.
  6. Fifteen days prior to a prisoner’s participation in the furlough program, the Director shall give the chief of police, sheriff or local chief law-enforcement official of the locality in which the prisoner will stay, notice of the prisoner’s participation. Such notice shall include the name, address and criminal history, and any additional information the chief of police or such officer may request. The transmission of information shall be confidential and not subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

History. Code 1950, § 53-37.1; 1972, c. 59; 1973, c. 234; 1976, c. 476; 1982, c. 636; 1989, c. 652; 2003, c. 846; 2020, c. 759.

Cross references.

As to punishment for Class 2 misdemeanors, see § 18.2-11 .

The 2003 amendments.

The 2003 amendment by c. 846, in subsection A, added the third sentence, and in subsection C, substituted “30” for “thirty” twice.

The 2020 amendments.

The 2020 amendment by c. 759 substituted “Director” for “Board” in subsection A in the last sentence.

CASE NOTES

Editor’s note.

Many of the cases annotated below were decided under prior law.

The furlough program is a statutory creation. Brooks v. Dunn, 376 F. Supp. 976, 1974 U.S. Dist. LEXIS 8354 (W.D. Va. 1974).

A prisoner does not have a constitutional right to a furlough. Brooks v. Dunn, 376 F. Supp. 976, 1974 U.S. Dist. LEXIS 8354 (W.D. Va. 1974).

There is no right under the general provisions of the Constitution itself for prisoners to participate in furlough and work-release programs. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

And there is no statutory right to a furlough. —

The plain language of the State statutory provisions on furloughs reveals neither a right to receive a furlough nor to be free from revocation of a furlough that has been granted, save under certain conditions. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

But prisoners are entitled to equal protection. —

Prison inmates are entitled to equal protection of the law, and even a discretionary determination such as a denial of furlough must comport with this prescription. Brooks v. Dunn, 376 F. Supp. 976, 1974 U.S. Dist. LEXIS 8354 (W.D. Va. 1974).

A proper exercise of discretion by the appropriate official is not reviewable under 42 U.S.C.S. § 1983. Brooks v. Dunn, 376 F. Supp. 976, 1974 U.S. Dist. LEXIS 8354 (W.D. Va. 1974).

In order to establish a constitutional deprivation cognizable under 42 U.S.C.S. § 1983, a prisoner must show that the furlough committee determination was so arbitrary or capricious as to be devoid of due process or that the determination was designed as a form of punishment. Brooks v. Dunn, 376 F. Supp. 976, 1974 U.S. Dist. LEXIS 8354 (W.D. Va. 1974).

No liberty interest created. —

Statutes creating such discretionary privileges as this section do not create any liberty interest entitling the inmate to federal due process protections. Hipes v. Braxton, 878 F. Supp. 56, 1995 U.S. Dist. LEXIS 3805 (W.D. Va. 1995).

This section sets no mandatory criteria under which a furlough must be granted, but rather states that the director “may,” in his discretion, grant furloughs. Hipes v. Braxton, 878 F. Supp. 56, 1995 U.S. Dist. LEXIS 3805 (W.D. Va. 1995).

A commendable record while incarcerated is not the only factor considered by the furlough committee in judging furlough applications. Brooks v. Dunn, 376 F. Supp. 976, 1974 U.S. Dist. LEXIS 8354 (W.D. Va. 1974).

Commission of crime not sole ground for denial or revocation of furlough. —

Provision now codified in § 53.1-38 that prisoners who have committed major crimes while on furloughs shall not be granted additional furloughs does not amount to a command that furloughs are to be denied or revoked only in such cases. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

Furlough may be summarily revoked. —

A regional superintendent for work-release did not deprive prisoner of any liberty or property interest under the Fourteenth Amendment when he summarily revoked his furlough and suspended him from participation in work-release. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

A finding that correction officials could not, consistently with the Constitution, revoke a single furlough and temporarily suspend participation in a work-release program without prior notice and a hearing would place the courts astride the day-to-day functioning of State prisons and involve the judiciary in issues and discretionary decisions that are not the business of federal judges. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

Cancellation of furlough, etc., for use of vulgar language not violative of right of free speech. —

Cancellation of a prisoner’s furlough, two days suspension from participation in work-release program and disciplinary action which was imposed directly on account of vulgar and insolent language used by the prisoner on the phone to a corrections official did not violate his right of free speech as guaranteed by the First and Fourteenth Amendments to the Constitution. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

Distinction between subsections D and E is element of willfulness; a felony offense must be willful. Every other failure to return within the prescribed time to the designated location is a misdemeanor unless the prisoner establishes that the failure to return was authorized or with just cause. Lambert v. Commonwealth, 6 Va. App. 360, 367 S.E.2d 745, 4 Va. Law Rep. 2737, 1988 Va. App. LEXIS 40 (1988).

To obtain a felony conviction under subsection D, the Commonwealth was required to prove the element of willfulness. Lambert v. Commonwealth, 6 Va. App. 360, 367 S.E.2d 745, 4 Va. Law Rep. 2737, 1988 Va. App. LEXIS 40 (1988).

Plain language of this section requires Commonwealth to prove willfulness beyond reasonable doubt. That element of the crime will not be inferred from an absence of evidence to the contrary. Lambert v. Commonwealth, 6 Va. App. 360, 367 S.E.2d 745, 4 Va. Law Rep. 2737, 1988 Va. App. LEXIS 40 (1988).

Mere failure to notify police or to call does not establish willful failure. When a criminal offense is defined by a willful failure to perform a certain act, it is not sufficient to support a conviction merely to establish that the accused did not do a certain act, without establishing circumstances that warrant an inference that the failure to act was intentional or by design. In the absence of evidence explaining inmate’s failure to return or to notify the local police, or showing his whereabouts, or detailing how and when he was returned to custody, the Commonwealth did not prove beyond a reasonable doubt that he acted willfully. Lambert v. Commonwealth, 6 Va. App. 360, 367 S.E.2d 745, 4 Va. Law Rep. 2737, 1988 Va. App. LEXIS 40 (1988).

Leaving designated area was “escape.” —

Where parole officer ordered defendant to remain in the lobby of the parole office, warning that noncompliance could result in a charge of “escape,” he specifically established new and more restrictive “limits of confinement” governing defendant’s furlough; defendant’s subsequent departure from the premises therefore constituted an escape in violation of this section. Yingling v. Commonwealth, 21 Va. App. 315, 464 S.E.2d 174, 1995 Va. App. LEXIS 886 (1995).

§ 53.1-38. When ineligible for furloughs.

Any prisoner who is convicted of a felony included within the provisions of Chapter 4 (§ 18.2-30 et seq.) of Title 18.2 or arson, burglary or robbery committed while on administrative furlough, shall, after conviction therefor, be ineligible for further furlough during the remainder of the sentence or sentences imposed upon him prior to furlough.

History. Code 1950, § 53-37.2; 1976, c. 210; 1982, c. 636.

CASE NOTES

There is no constitutional right to furlough. —

There is no right under the general provisions of the Constitution itself for prisoners to participate in furlough and work-release programs. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977) (decided under prior law).

Nor any statutory right. —

The plain language of the State statutory provisions on furloughs reveals neither a right to receive a furlough nor to be free from revocation of a furlough that has been granted, save under certain conditions. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977) (decided under prior law).

Commission of crime not sole ground for denial or revocation of furlough. —

While this section does mandate that prisoners who have committed major crimes while on furloughs shall not be granted additional furloughs, this does not amount to a command that furloughs are to be denied or revoked only in such cases. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977) (decided under prior law).

§ 53.1-39. Certain punishment of prisoners prohibited.

Notwithstanding any provision of this Code or of any other law, rule, or regulation to the contrary, it shall be unlawful for the Director, the Board, or any other correctional authority having the care, custody, or control of any prisoner in this Commonwealth to make or enforce any rule or regulation providing for the whipping, flogging, or administration of any similar corporal punishment of any prisoner, or to give any specific order for or to cause to be administered or personally to administer or inflict any such corporal punishment.

History. Code 1950, § 53-55; 1982, c. 636; 2020, c. 759.

The 2020 amendments.

The 2020 amendment by c. 759 substituted “the Director, the Board, or” for “the Board or”; and made minor punctuation changes.

§ 53.1-39.1. Restrictive housing; data collection and reporting; report.

  1. As used in this section:“Offender” means an adult or juvenile who is confined in a state correctional facility.“Restrictive housing” means special-purpose bed assignments operated under maximum security regulations and procedures, and utilized under proper administrative process, for the personal protection or custodial management of offenders. The Department of Corrections’ restrictive housing shall, at a minimum, adhere to the standards adopted by the American Correctional Association, the accrediting body for the corrections industry.“Shared Allied Management Unit” or “SAM Unit” means a general population environment used to promote safety within institutions by avoiding the use of restrictive housing to manage vulnerable populations that typically require a high level of services from security, mental health, or medical staff.“Vulnerable population” means offenders who are at a greater risk of victimization or being bullied in the general population due to characteristics such as cognitive challenge, age (seniors and youthful), small stature, or timid personalities.
  2. The Department shall report to the General Assembly and the Governor on or before October 1 of each year the following information for the Department, in the aggregate for the previous fiscal year:
    1. The average daily population;
    2. The number of offenders who were placed in and the number of offenders who were released from restrictive housing;
    3. The age, sex, race, ethnicity, mental health code, medical class code, security level, and custody level classification of each offender housed in restrictive housing or a SAM Unit;
    4. The disciplinary offense history preceding placement in restrictive housing or a SAM Unit;
    5. The number of days each offender spent in restrictive housing;
    6. The number of offenders released from restrictive housing directly into the community;
    7. The number of full-time mental health staff; and
    8. Any changes made during the reporting period to written policies or procedures of the Department and each state correctional facility relating to the use and conditions of restrictive housing and SAM Units.
  3. The Department shall submit the annual report to the Governor, the Chairmen of the House Committee on Public Safety and the Senate Committee on Rehabilitation and Social Services, and the Clerks of the House of Delegates and the Senate as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports, and the annual report shall be posted on the General Assembly’s website. The Department shall publish the report on the Department’s website following its submission to the Governor, the Chairmen of the House Committee on Public Safety and the Senate Committee on Rehabilitation and Social Services, and the Clerks of the House of Delegates and the Senate.

History. 2019, cc. 453, 516.

Editor’s note.

The Virginia Code Commission authorized the substitution of “House Committee on Public Safety” for “House Committee on Militia, Police and Public Safety” twice in subsection C. March 10, 2021.

§ 53.1-40. Appointment of counsel for indigent prisoners.

The judge of a circuit court in whose county or city a state correctional facility is located shall, on motion of the attorney for the Commonwealth for such county or city, when he is requested so to do by the superintendent or warden of a state correctional facility, appoint, for a period of no less than thirty days nor more than one year, one or more discreet and competent attorneys-at-law to counsel and assist indigent prisoners therein confined regarding any legal matter relating to their incarceration.

An attorney so appointed shall be paid as directed by the court from the criminal fund reasonable compensation on an hourly basis and necessary expenses based upon monthly reports to be furnished the court by him.

History. Code 1950, § 53-21.2; 1972, c. 773; 1979, c. 700; 1982, c. 636; 1997, c. 207.

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 41 H, effective for the biennium ending June 30, 2022, provides: “In order to reduce expenditures through the Criminal Fund for court-appointed counsel, compensation paid to attorneys appointed pursuant to Virginia Code § 53.1-40 shall be limited to $55 per hour, with a maximum per diem compensation of $200, except in cases where the appointed attorney is appointed to represent indigent prisoners at more than one state prison, and in such cases their billing shall be capped monthly at $6,000, plus reasonable expenses, to be paid from the Criminal Fund.”

The 1997 amendment inserted “for a period of no less than thirty days nor more than one year” following “appoint” in the first paragraph.

Law Review.

For note discussing the liability of state-supplied defense attorneys under 42 U.S.C.S. § 1983 for failure to perform statutory duties, see 63 Va. L. Rev. 607 (1977).

For article on right of prisoner access to the courts, see 22 U. Rich. L. Rev. 19 (1987).

CASE NOTES

Editor’s note.

Many of the cases annotated below were decided under prior law.

Assistance of counsel as viable alternative to law library. —

In an action to determine whether prisoners were denied adequate legal assistance in the form of a law library, the court held that an attorney’s legal assistance, which was provided for in accordance with this section, was a viable alternative to the requirement of a law library. Almond v. Davis, 639 F.2d 1086, 1981 U.S. App. LEXIS 20394 (4th Cir. 1981).

Correctional officials’ constitutional obligation to inmates not afforded access to an adequate law library is satisfied by making available the assistance of counsel pursuant to this section. Peterson v. Davis, 421 F. Supp. 1220, 1976 U.S. Dist. LEXIS 13025 (E.D. Va. 1976), aff'd, 562 F.2d 48 (4th Cir. 1977).

Although the Virginia attorney assistance program would unquestionably benefit from the participation of additional lawyers, the program is basically an acceptable alternative to an adequate legal research facility. Peterson v. Davis, 421 F. Supp. 1220, 1976 U.S. Dist. LEXIS 13025 (E.D. Va. 1976), aff'd, 562 F.2d 48 (4th Cir. 1977).

Prisoners not denied access to courts when notified of availability of counsel. —

A prisoner who had no access to a law library as a result of his confinement in maximum security and a prisoner who had access to a law library only three times a month were not denied adequate access to legal materials or to the courts. So long as prisoners are notified of the availability of counsel for consultation under this section, the State’s system adequately insures that prisoners will have their claims reviewed and presented to the courts. Williams v. Leeke, 584 F.2d 1336, 1978 U.S. App. LEXIS 8621 (4th Cir. 1978), cert. denied, 442 U.S. 911, 99 S. Ct. 2825, 61 L. Ed. 2d 276, 1979 U.S. LEXIS 2280 (1979).

Rule prohibiting a prisoner from seeking or receiving help from fellow inmates does not interfere with his right of access to the courts, for even if the State is required to provide a prisoner with some form of personal assistance in his legal matters, the provision for a court-appointed attorney fulfills that obligation. Graham v. Hutto, 437 F. Supp. 118, 1977 U.S. Dist. LEXIS 13878 (E.D. Va. 1977), aff'd, 571 F.2d 575 (4th Cir. 1978).

Prisoner’s right of access to legal materials of courts held violated. —

Where a prisoner’s access to the law library in the Richmond City Jail was restricted to 45 minutes at a time, three days a week, with no research assistance provided, and counsel for the city could neither assure the Court that the prisoner had a right to seek assistance of counsel under this section, nor that notice of such a right, if it did exist, was posted at the jail, the prisoner was denied his right of access to legal materials and to the courts. Williams v. Leeke, 584 F.2d 1336, 1978 U.S. App. LEXIS 8621 (4th Cir. 1978), cert. denied, 442 U.S. 911, 99 S. Ct. 2825, 61 L. Ed. 2d 276, 1979 U.S. LEXIS 2280 (1979).

Prisoner’s bald assertion insufficient to raise doubt as to effectiveness of counsel. —

Prisoner’s bald assertion that the court-appointed attorney for inmates represents the interests of the prison system, unsupported by facts, is insufficient to raise genuine doubts as to the effectiveness of the legal counseling provided by the attorney. Graham v. Hutto, 437 F. Supp. 118, 1977 U.S. Dist. LEXIS 13878 (E.D. Va. 1977), aff'd, 571 F.2d 575 (4th Cir. 1978).

Duties of attorneys under section. —

Attorneys appointed under this section are to advise an inmate as to problems pertaining to his incarceration. Particularly, the attorneys are to aid in the preparation of writs of habeas corpus and suits relating to the conditions of confinement. These attorneys are expected to informally present an inmate’s grievance relating to conditions of incarceration to prison officials prior to taking any formal adversarial action. Attorneys appointed under the program do not represent individual inmates, but merely advise and assist them. Peterson v. Davis, 421 F. Supp. 1220, 1976 U.S. Dist. LEXIS 13025 (E.D. Va. 1976), aff'd, 562 F.2d 48 (4th Cir. 1977).

As to immunity of attorney appointed under this section from duty by prisoner alleging a violation of 42 U.S.C. § 1983, see Minns v. Paul, 542 F.2d 899, 1976 U.S. App. LEXIS 7640 (4th Cir. 1976), cert. denied, 429 U.S. 1102, 97 S. Ct. 1127, 51 L. Ed. 2d 552, 1977 U.S. LEXIS 771 (1977). But see Hall v. Quillen, 631 F.2d 1154, 1980 U.S. App. LEXIS 13044 (4th Cir. 1980), cert. denied, 454 U.S. 1141, 102 S. Ct. 999, 71 L. Ed. 2d 293, 1982 U.S. LEXIS 327 (1982).

§ 53.1-40.01. Conditional release of geriatric prisoners.

Any person serving a sentence imposed upon a conviction for a felony offense, other than a Class 1 felony, (i) who has reached the age of sixty-five or older and who has served at least five years of the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years of the sentence imposed may petition the Parole Board for conditional release. The Parole Board shall promulgate regulations to implement the provisions of this section.

History. 1994, 2nd Sp. Sess., cc. 1, 2; 2001, cc. 446, 487.

Cross references.

As to punishment for Class 1 felonies, see § 18.2-10 .

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 429, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of § 53.1-40.01 , Code of Virginia, the Parole Board shall annually consider for conditional release those inmates who meet the criteria for conditional geriatric release set out in § 53.1-40.01 , Code of Virginia, except that upon any such review the Board may schedule the next review as many as three years thereafter. If any such inmate is also eligible for discretionary parole under the provisions of § 53.1-151 et seq., Code of Virginia, the board shall not be required to consider that inmate for conditional geriatric release unless the inmate petitions the board for conditional geriatric release.”

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: “That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia.”

The 2001 amendments.

The 2001 amendments by cc. 446 and 487 are identical, and deleted “committed on or after January 1, 1995” following “Class 1 felony.”

Law Review.

For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

For article, “Changing the Sentence Without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release,” see 52 Wm. and Mary L. Rev. 465 (2010).

For annual survey article, “Criminal Law and Procedure,” see 46 U. Rich. L. Rev. 59 (2011).

Michie’s Jurisprudence.

For related discussion, see 4C M.J. Constitutional Law, § 94; 10A M.J. Instructions, § 36.10B M.J. Intoxicating Liquors, §§ 28, 33 - 36, 38, 41 - 44, 46, 48.

CASE NOTES

Jury instructions. —

Because this section is in the nature of a parole statute, in those cases where geriatric release is a possibility, juries shall be instructed on the possibility of geriatric release along with the instruction that parole is otherwise abolished. Fishback v. Commonwealth, 260 Va. 104 , 532 S.E.2d 629, 2000 Va. LEXIS 100 (2000) (pursuant to the legislative summary the 2020 amendments to § 53.1-165.1 by Acts 2020, cc. 1200 and 1272 were in response to this case).

Trial court did not abuse its discretion by granting the geriatric parole instruction because geriatric release was a possibility based on defendant’s age and sentence; and the amended jury instruction was properly denied as defendant’s proposed instruction was not an accurate statement of the law. Bustos v. Commonwealth, 2019 Va. App. LEXIS 307 (Va. Ct. App. Dec. 27, 2019).

Meaningful opportunity to obtain release. —

Imposition of two life sentences without parole on a juvenile defendant was not cruel and unusual punishment under U.S. Const., Amend. VIII because § 53.1-40.01 provided defendant with a meaningful opportunity to obtain release in the future based on demonstrated maturity and rehabilitation. Angel v. Commonwealth, 281 Va. 248 , 704 S.E.2d 386, 2011 Va. LEXIS 26, cert. denied, 565 U.S. 920, 132 S. Ct. 344, 181 L. Ed. 2d 216, 2011 U.S. LEXIS 7091 (2011).

With regard to an inmate sentenced to life imprisonment without parole for a non-homicide offense committed while a juvenile, Virginia’s Geriatric Release parole fails to satisfy the “meaningful” opportunity requirement of LeBlanc v. Mathena, 841 F.3d 256, 2016 U.S. App. LEXIS 20041 (4th Cir. 2016), rev’d, mot. granted, 137 S. Ct. 1726, 2017 U.S. LEXIS 3720, 198 L. Ed. 2d 186 (2017).

Geriatric Release failed to comply with the requirement of Graham v. Florida, 560 U.S. 48 (2010) that juvenile offenders have the opportunity to obtain release based on demonstrated maturity and rehabilitation because it allows for the lifetime incarceration of a juvenile nonhomicide offender based solely on the heinousness or depravity of the offender’s crime. In the context of federal habeas review, the court found it objectively unreasonable for the Supreme Court of Virginia to take the position that a penal regime under which it concedes early release is the exception, rather than the expectation, complies with Graham’s meaningfulness requirement. LeBlanc v. Mathena, 841 F.3d 256, 2016 U.S. App. LEXIS 20041 (4th Cir. 2016), rev'd, 137 S. Ct. 1726, 198 L. Ed. 2d 186, 2017 U.S. LEXIS 3720 (2017).

In light of administrative procedures governing implementation of the Geriatric Release provision, it was objectively unreasonable to conclude that Geriatric Release satisfied the requirement that juvenile offenders be able to obtain release “based on maturity and rehabilitation,” when, under the plain and unambiguous language of the governing procedures, the Parole Board can deny every juvenile offender Geriatric Release for any reason whatsoever. LeBlanc v. Mathena, 841 F.3d 256, 2016 U.S. App. LEXIS 20041 (4th Cir. 2016), rev'd, 137 S. Ct. 1726, 198 L. Ed. 2d 186, 2017 U.S. LEXIS 3720 (2017).

Even though a prisoner’s sentence was 77 years, he could possibly be released under Virginia’s geriatric release program and thus had a meaningful opportunity to receive parole; Virginia’s program allowing the conditional release of geriatric prisoners provided juvenile offenders an opportunity for release based on maturity and rehabilitation, which satisfied requirements of the Eighth Amendment. Contreras v. Davis, 716 Fed. Appx. 160, 2017 U.S. App. LEXIS 26149 (4th Cir. 2017), cert. denied, 138 S. Ct. 2012, 201 L. Ed. 2d 267, 2018 U.S. LEXIS 2874 (2018).

Circuit court properly sentenced defendant a total active sentence of 99 years in prison for robbery and capital murder that were committed when he was 16 years old because Virginia’s geriatric parole statute provided him with a meaningful opportunity for release on the sentence for the robbery conviction, and his discretionary life sentence, suspended after 91 years, for capital murder, was not affected by the holdings in Miller and Montgomery where he was not subjected to a mandatory life-without-parole sentence and he was allowed to present evidence of his youth and immaturity at the time of his offense during his resentencing hearing. Ross v. Commonwealth, 2018 Va. App. LEXIS 291 (Va. Ct. App. Oct. 30, 2018), aff'd, No. 181530, 2020 Va. Unpub. LEXIS 2 (Va. Jan. 16, 2020).

OPINIONS OF THE ATTORNEY GENERAL

Change of sentences from death to life imprisonment is self-executing. —

Following the abolishment of the death penalty, the Virginia Department of Corrections is required to administratively recalculate the sentences of inmates sentenced to death to reflect the change to life imprisonment according to the provisions of the law. See opinion of Attorney General to Harold W. Clarke, Director, Virginia Department of Corrections, 21-026, 2021 Va. AG LEXIS 31 (11/19/21).

§ 53.1-40.02. Conditional release of terminally ill prisoners.

  1. As used in this section, “terminally ill” means having a chronic or progressive medical condition caused by injury, disease, or illness where the medical prognosis is the person’s death within 12 months.
  2. Any person serving a sentence imposed upon a conviction for a felony offense, except as provided in subsection C, who is terminally ill may petition the Parole Board for conditional release.
  3. A person who is terminally ill and is serving a sentence imposed upon a conviction for one of the following offenses shall not be eligible to petition the Parole Board for conditional release:
    1. A Class 1 felony;
    2. Any violation of § 18.2-32 , 18.2-32.1 , 18.2-32 .2, or 18.2-33 ;
    3. Any violation of § 18.2-40 or 18.2-45 ;
    4. Any violation of § 18.2-46.5 , subsection A or B of § 18.2-46.6 , or § 18.2-46.7 ;
    5. Any kidnapping or abduction felony under Article 3 (§ 18.2-47 et seq.) of Chapter 4 of Title 18.2, except for a violation of § 18.2-49.1 ;
    6. Any malicious felonious assault or malicious bodily wounding under Article 4 (§ 18.2-51 et seq.) of Chapter 4 of Title 18.2, any violation of § 18.2-51.7 , 18.2-54.1 , or 18.2-54.2 , or any felony violation of § 18.2-57.2 ;
    7. Any felony violation of § 18.2-60.3 ;
    8. Any felony violation of § 16.1-253.2 or 18.2-60.4 ;
    9. Robbery under § 18.2-58 or carjacking under § 18.2-58.1 ;
    10. Criminal sexual assault punishable as a felony under Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, except, when not committed against a minor, a violation of subdivision A 5 of § 18.2-67.3 , § 18.2-67.4:1 , subsection B of § 18.2-67.5 , or § 18.2-67.5:1 ;
    11. Any violation of § 18.2-90 or 18.2-93 ;
    12. Any violation of § 18.2-289 or subsection A of § 18.2-300 ;
    13. Any felony offense in Article 3 (§ 18.2-346 et seq.) of Chapter 8 of Title 18.2 involving a minor victim;
    14. Any felony offense in Article 4 (§ 18.2-362 et seq.) of Chapter 8 of Title 18.2 involving a minor victim, except for a violation of § 18.2-362 or 18.2-370.5 or subsection B of § 18.2-371.1 ;
    15. Any felony offense in Article 5 (§ 18.2-372 et seq.) of Chapter 8 of Title 18.2 involving a minor victim, except for a violation of subsection A of § 18.2-374.1:1 ;
    16. Any violation of § 18.2-481 , 40.1-100.2 , or 40.1-103 ; or
    17. A second or subsequent felony violation of the following offenses when such offenses were not part of a common act, transaction, or scheme and such person has been at liberty as defined in § 53.1-151 between each conviction:
      1. Voluntary or involuntary manslaughter under Article 1 (§ 18.2-30 et seq.) of Chapter 4 of Title 18.2 or any crime punishable as such;
      2. Any violation of § 18.2-41 or 18.2-42.1 ;
      3. Any violation of subsection C of § 18.2-46.6 ;
      4. Any violation when done unlawfully but not maliciously of § 18.2-51 or 18.2-51.1 ;
      5. Arson in violation of § 18.2-77 when the structure burned was occupied or a Class 3 felony violation of § 18.2-79 ;
      6. Any violation of § 18.2-89 with the intent to commit any larceny or § 18.2-92 ;
      7. Any violation of subsection A of § 18.2-374.1:1 ;
      8. Any violation of § 18.2-423 , 18.2-423.01 , 18.2-423.1 , 18.2-423.2 , or 18.2-433.2 ; or
      9. Any violation of subdivision E 2 of § 40.1-29 .
  4. The Parole Board shall promulgate regulations to implement the provisions of this section.

History. 2020, Sp. Sess. I, cc. 33, 52.

Editor’s note.

Acts 2020 Sp. Sess. I, c. 52, cl. 2 provides: “That the Department of Corrections (the Department) shall convene a work group to study the impact of the sentence credit amendments set forth in this act. The work group shall include representatives of the Senate Committee on Finance and Appropriations, the House Committee on Appropriations, the Virginia State Crime Commission, and any other stakeholders the Department deems appropriate. The Division of Legislative Services shall provide staff support to the work group. The Department shall report to the Governor and the General Assembly by July 1, 2021, the membership of the work group and the work group’s plan for conducting such study, including any data and information upon which the work group will rely in conducting such study, and shall report its finding and conclusions to the Governor and the General Assembly by June 1, 2023. The report shall include (i) the state fiscal impact of the sentence credit amendments, including any cost savings realized by reducing the length of time spent by persons in state correctional facilities; (ii) the number of persons affected by the sentence credit amendments and the distribution of such persons among state correctional facilities; (iii) a detailed six-year plan describing the estimated releases by facility under this act, accounting for any persons who will be transferred from jail, as well as persons who would be otherwise released in the covered years; and (iv) any other information the Department deems relevant.”

Acts 2020 Sp. Sess. I, c. 52, cl. 3 provides: “That the provisions of this act, other than the provisions of the second enactment of this act, shall become effective on July 1, 2022.” The section as enacted by c. 33 is nearly identical and effective March 1, 2021.

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: “That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia.”

Effective date.

This section, as enacted by c. 33, is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

OPINIONS OF THE ATTORNEY GENERAL

Change of sentences from death to life imprisonment is self-executing. —

Following the abolishment of the death penalty, the Virginia Department of Corrections is required to administratively recalculate the sentences of inmates sentenced to death to reflect the change to life imprisonment according to the provisions of the law. See opinion of Attorney General to Harold W. Clarke, Director, Virginia Department of Corrections, 21-026, 2021 Va. AG LEXIS 31 (11/19/21).

Article 2.1. Medical and Mental Health Care; Involuntary Admission and Treatment.

§ 53.1-40.1. Medical and mental health treatment of prisoners incapable of giving consent.

  1. The Director or his designee may petition the circuit court or any district court judge or any special justice, as defined in § 37.2-100 , herein referred to as the court, of the county or city in which the prisoner is located for an order authorizing treatment of a prisoner sentenced and committed to the Department of Corrections. The court shall authorize such treatment in a facility designated by the Director upon finding, on the basis of clear and convincing evidence, that the prisoner is incapable, either mentally or physically, of giving informed consent to such treatment and that the proposed treatment is in the best interests of the prisoner.
  2. Prior to the court’s authorization of such treatment, the court shall appoint an attorney to represent the interests of the prisoner. Evidence shall be presented concerning the prisoner’s condition and proposed treatment, which evidence may, in the court’s discretion and in the absence of objection by the prisoner or the prisoner’s attorney, be submitted by affidavit.
  3. Any order authorizing treatment pursuant to subsection A shall describe the treatment authorized and authorize generally such examinations, tests, medications, and other treatments as are in the best interests of the prisoner but may not authorize nontherapeutic sterilization, abortion, or psychosurgery. Such order shall require the licensed physician, psychiatrist, clinical psychologist, professional counselor, or clinical social worker acting within his area of expertise who is treating the prisoner to report to the court and the prisoner’s attorney any change in the prisoner’s condition resulting in restoration of the prisoner’s capability to consent prior to completion of the authorized treatment and related services. Upon receipt of such report, the court may enter such order withdrawing or modifying its prior authorization as it deems appropriate. Any petition or order under this section may be orally presented or entered, provided a written order is subsequently executed.
  4. Any order of a judge under subsection A may be appealed de novo within 10 days to the circuit court for the jurisdiction where the prisoner is located, and any order of a circuit court hereunder, either originally or on appeal, may be appealed within 10 days to the Court of Appeals, which shall give such appeal priority and hear the appeal as soon as possible.
  5. Whenever the director of any hospital or facility reasonably believes that treatment is necessary to protect the life, health, or safety of a prisoner, such treatment may be given during the period allowed for any appeal unless prohibited by order of a court of record wherein the appeal is pending.
  6. Upon the advice of a licensed physician, psychiatrist, or clinical psychologist acting within his area of expertise who has attempted to obtain consent and upon a finding of probable cause to believe that a prisoner is incapable, due to any physical or mental condition, of giving informed consent to treatment and that the medical standard of care calls for testing, observation, or other treatment within the next 12 hours to prevent death, disability or a serious irreversible condition, the court or, if the court is unavailable, a magistrate shall issue an order authorizing temporary admission of the prisoner to a hospital or other health care facility and authorizing such testing, observation, or other treatment. Such order shall expire after a period of 12 hours unless extended by the court as part of an order authorizing treatment under subsection A.
  7. Any licensed health or mental health professional or licensed facility providing services pursuant to the court’s or magistrate’s authorization as provided in this section shall have no liability arising out of a claim to the extent it is based on lack of consent to such services. Any such professional or facility providing services with the consent of the prisoner receiving treatment shall have no liability arising out of a claim to the extent it is based on lack of capacity to consent if a court or a magistrate has denied a petition hereunder to authorize such services, and such denial was based on an affirmative finding that the prisoner was capable of making an informed decision regarding the proposed services.
  8. Nothing in this section shall be deemed to limit or repeal any common law rule relating to consent for medical treatment or the right to apply or the authority conferred by any other applicable statute or regulation relating to consent.

History. 1988, c. 873; 1997, c. 801; 2005, c. 716; 2016, c. 211.

Cross references.

As to disposition of appeals, see § 17.1-410 .

The 1997 amendment, effective January 1, 1998, deleted “incompetent or” preceding “incapable” in the second sentence in subsection A and deleted “competence or” following “restoration of the prisoner’s” in the second sentence in subsection C.

The 2005 amendments.

The 2005 amendment by c. 716, effective October 1, 2005, in subsection A, inserted “any district court” preceding “judge,” “or any special justice” preceding “as defined in,” and substituted “37.2-100” for “37.1-1”; in subsection C, substituted “medications” for “medication” and “treatments” for “treatment”; and made minor stylistic changes.

The 2016 amendments.

The 2016 amendment by c. 211, in subsection C, deleted “or” following “psychiatrist” and inserted “professional counselor, or clinical social worker”; and in subsection G, inserted “or mental health.”

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 1 Courts. § 1.03 Court of Appeals; Chapter 38 Appeals to the Court of Appeals of Virginia. § 38.04 Jurisdiction. Friend.

Virginia Forms (Matthew Bender). No. 6-741 Medical Emergency Temporary Detention Order; No. 9-1901 Medical Treatment and Detention Petition, et seq.

Michie’s Jurisprudence.

For related discussion, see 14B M.J. Prisons and Prisoners, § 2.

CASE NOTES

For discussion of procedures for involuntary admission and for treatment of mentally ill prisoners, see Washington v. Silber, 805 F. Supp. 379, 1992 U.S. Dist. LEXIS 17046 (W.D. Va. 1992), aff'd, 993 F.2d 1541 (4th Cir. 1993).

Liberty interests and medical necessity reasonably accommodated. —

Read together, this section, § 53.1-40.2 , and related statutes reasonably accommodate liberty interests and medical necessity while protecting against the risk of an erroneous deprivation. Washington v. Silber, 805 F. Supp. 379, 1992 U.S. Dist. LEXIS 17046 (W.D. Va. 1992), aff'd, 993 F.2d 1541 (4th Cir. 1993).

Court’s limited involvement regarding treatment. —

It is neither possible nor helpful to judicially micro-manage an inmate’s psychiatric treatment. Washington v. Silber, 805 F. Supp. 379, 1992 U.S. Dist. LEXIS 17046 (W.D. Va. 1992), aff'd, 993 F.2d 1541 (4th Cir. 1993).

§ 53.1-40.2. (Effective until July 1, 2022) Involuntary admission of prisoners with mental illness.

  1. Upon the petition of the Director or his designee, any district court judge or any special justice, as defined by § 37.2-100 , of the county or city where the prisoner is located may issue an order authorizing involuntary admission of a prisoner who is sentenced and committed to the Department of Corrections and who is alleged or reliably reported to have a mental illness to a degree that warrants hospitalization.
  2. Such prisoner may be involuntarily admitted to a hospital or facility for the care and treatment of persons with mental illness by complying with the following admission procedures:
    1. A hearing on the petition shall be scheduled as soon as possible, allowing the prisoner an opportunity to prepare any defenses which he may have, obtain independent evaluation and expert opinion at his own expense, and summons other witnesses.
    2. Prior to such hearing, the judge or special justice shall fully inform the prisoner of the allegations of the petition, the standard upon which he may be admitted involuntarily, the right of appeal from such hearing to the circuit court, and the right to jury trial on appeal. The judge or special justice shall ascertain if the prisoner is represented by counsel, and, if he is not represented by counsel, the judge or special justice shall appoint an attorney to represent the prisoner.
    3. The judge or special justice shall require an examination of such prisoner by a psychiatrist, clinical psychologist, or clinical social worker who is licensed in Virginia or, if such psychiatrist, clinical psychologist, or clinical social worker is not available, a physician or psychologist who is licensed in Virginia and who is qualified in the diagnosis of mental illness. The judge or special justice shall summons the examiner, who shall certify that he has personally examined the individual and has probable cause to believe that the prisoner does or does not have mental illness, that there does or does not exist a substantial likelihood that, as a result of mental illness, the prisoner will, in the near future, cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any, and that the prisoner does or does not require involuntary hospitalization. The judge or special justice may accept written certification of the examiner’s findings if the examination has been personally made within the preceding five days and if there is no objection to the acceptance of such written certification by the prisoner or his attorney.
    4. If the judge or special justice, after observing the prisoner and obtaining the necessary positive certification and other relevant evidence, finds specifically that (i) the prisoner has a mental illness and that there exists a substantial likelihood that, as a result of mental illness, the prisoner will, in the near future, (a) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any, or (b) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs, and (ii) alternatives to involuntary admission have been investigated and deemed unsuitable and there is no less restrictive alternative to such admission, the judge or special justice shall by written order and specific findings so certify and order that the prisoner be placed in a hospital or other facility designated by the Director for a period not to exceed 180 days from the date of the court order. Such placement shall be in a hospital or other facility for the care and treatment of persons with mental illness that is licensed or operated by the Department of Behavioral Health and Developmental Services.
    5. The judge or special justice shall also order that the relevant medical records of such prisoner be released to the hospital, facility, or program in which he is placed upon request of the treating physician or director of the hospital, facility, or program.
    6. The Department shall prepare the forms required in procedures for admission as approved by the Attorney General. These forms, which shall be the legal forms used in such admissions, shall be distributed by the Department to the clerks of the general district courts of the various counties and cities of the Commonwealth and to the directors of the respective state hospitals.

History. 1988, c. 873; 2005, c. 716; 2008, cc. 779, 850, 870; 2009, cc. 813, 840; 2020, c. 945.

The 2005 amendments.

The 2005 amendment by c. 716, effective October 1, 2005, in subsection A, substituted “any district court judge or any special justice” for “any judge” “37.2-100” for “37.1-1,” “have a mental illness” for “be mentally ill,” and “that warrants” for “which warrants”; substituted “persons with mental illness” for “the mentally ill” in subsection B; inserted “or special justice” three times in subdivision B 2, three times in subdivision B 3, and subdivisions B 4 and B 5; in subdivision B 3, substituted “the” for “he is or is not mentally ill, that such” preceding “prisoner,” and “does” for “requires” preceding “or does not require,” and deleted “in his discretion” preceding “or special justice”; substituted “persons with mental illness that” for “the mentally ill” in subdivision B 4; and made minor stylistic changes.

The 2008 amendments.

The 2008 amendments by cc. 779, 850 and 870 are identical, and in subdivision B 3, substituted “that there does or does not exist a substantial likelihood that, as a result of mental illness, the prisoner will, in the near future, cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any, and that the prisoner” for “does or does not present an imminent danger to himself or others and” in the second sentence; and rewrote clause (i), which read: “the prisoner presents an imminent danger to himself or others as a result of mental illness or has been proven to be so seriously mentally ill as to be substantially unable to care for himself” in subdivision B 4.

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical and substituted “Behavioral Health and Developmental Services” for “Mental Health, Mental Retardation and Substance Abuse Services” at the end of subdivision B 4.

The 2020 amendments.

The 2020 amendment by c. 945 substituted “clinical psychologist, or clinical social worker who is licensed in Virginia or, if such psychiatrist, clinical psychologist, or clinical social worker” for “who is licensed in Virginia or a clinical psychologist who is licensed in Virginia or, if such psychiatrist or clinical psychologist” in subdivision B 3, first sentence.

The 2022 amendments.

The 2022 amendment by c. 509, substituted “clinical psychologist, clinical social worker, or licensed professional counselor” for “clinical psychologist, or clinical social worker” twice in the first sentence of subdivision B 3.

CASE NOTES

For discussion of procedures for involuntary admission and for treatment of mentally ill prisoners, see Washington v. Silber, 805 F. Supp. 379, 1992 U.S. Dist. LEXIS 17046 (W.D. Va. 1992), aff'd, 993 F.2d 1541 (4th Cir. 1993).

Liberty interests and medical necessity reasonably accommodated. —

Read together, § 53.1-40.1 , this section, and related statutes reasonably accommodate liberty interests and medical necessity while protecting against the risk of an erroneous deprivation. Washington v. Silber, 805 F. Supp. 379, 1992 U.S. Dist. LEXIS 17046 (W.D. Va. 1992), aff'd, 993 F.2d 1541 (4th Cir. 1993).

Court’s limited involvement regarding treatment. —

It is neither possible nor helpful to judicially micro-manage an inmate’s psychiatric treatment. Washington v. Silber, 805 F. Supp. 379, 1992 U.S. Dist. LEXIS 17046 (W.D. Va. 1992), aff'd, 993 F.2d 1541 (4th Cir. 1993).

§ 53.1-40.2. (Effective July 1, 2022) Involuntary admission of prisoners with mental illness.

  1. Upon the petition of the Director or his designee, any district court judge or any special justice, as defined by § 37.2-100 , of the county or city where the prisoner is located may issue an order authorizing involuntary admission of a prisoner who is sentenced and committed to the Department of Corrections and who is alleged or reliably reported to have a mental illness to a degree that warrants hospitalization.
  2. Such prisoner may be involuntarily admitted to a hospital or facility for the care and treatment of persons with mental illness by complying with the following admission procedures:
    1. A hearing on the petition shall be scheduled as soon as possible, allowing the prisoner an opportunity to prepare any defenses which he may have, obtain independent evaluation and expert opinion at his own expense, and summons other witnesses.
    2. Prior to such hearing, the judge or special justice shall fully inform the prisoner of the allegations of the petition, the standard upon which he may be admitted involuntarily, the right of appeal from such hearing to the circuit court, and the right to jury trial on appeal. The judge or special justice shall ascertain if the prisoner is represented by counsel, and, if he is not represented by counsel, the judge or special justice shall appoint an attorney to represent the prisoner.
    3. The judge or special justice shall require an examination of such prisoner by a psychiatrist, clinical psychologist, clinical social worker, or licensed professional counselor who is licensed in Virginia or, if such psychiatrist, clinical psychologist, clinical social worker, or licensed professional counselor is not available, a physician or psychologist who is licensed in Virginia and who is qualified in the diagnosis of mental illness. The judge or special justice shall summons the examiner, who shall certify that he has personally examined the individual and has probable cause to believe that the prisoner does or does not have mental illness, that there does or does not exist a substantial likelihood that, as a result of mental illness, the prisoner will, in the near future, cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any, and that the prisoner does or does not require involuntary hospitalization. The judge or special justice may accept written certification of the examiner’s findings if the examination has been personally made within the preceding five days and if there is no objection to the acceptance of such written certification by the prisoner or his attorney.
    4. If the judge or special justice, after observing the prisoner and obtaining the necessary positive certification and other relevant evidence, finds specifically that (i) the prisoner has a mental illness and that there exists a substantial likelihood that, as a result of mental illness, the prisoner will, in the near future, (a) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any, or (b) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs, and (ii) alternatives to involuntary admission have been investigated and deemed unsuitable and there is no less restrictive alternative to such admission, the judge or special justice shall by written order and specific findings so certify and order that the prisoner be placed in a hospital or other facility designated by the Director for a period not to exceed 180 days from the date of the court order. Such placement shall be in a hospital or other facility for the care and treatment of persons with mental illness that is licensed or operated by the Department of Behavioral Health and Developmental Services.
    5. The judge or special justice shall also order that the relevant medical records of such prisoner be released to the hospital, facility, or program in which he is placed upon request of the treating physician or director of the hospital, facility, or program.
    6. The Department shall prepare the forms required in procedures for admission as approved by the Attorney General. These forms, which shall be the legal forms used in such admissions, shall be distributed by the Department to the clerks of the general district courts of the various counties and cities of the Commonwealth and to the directors of the respective state hospitals.

History. 1988, c. 873; 2005, c. 716; 2008, cc. 779, 850, 870; 2009, cc. 813, 840; 2020, c. 945; 2022, c. 509.

§ 53.1-40.3. Place of hearing or proceeding.

Any hearing held by a court pursuant to § 53.1-40.1 or 53.1-40.2 may be held in any courtroom available within the county or city wherein the prisoner is located or any appropriate place which may be made available by the Director and approved by the judge. Nothing herein shall be construed as prohibiting holding the hearing on the grounds of a state or local correctional facility or a hospital or facility for the care and treatment of individuals with mental illness.

History. 1988, c. 873; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals with mental illness” for “the mentally ill” at the end of the section and made a minor stylistic change.

§ 53.1-40.4. Appeal of order authorizing involuntary admission.

  1. Any prisoner involuntarily committed pursuant to § 53.1-40.2 shall have the right to appeal such order to the circuit court in the jurisdiction wherein the prisoner is located. The decision of the circuit court shall be final with no further right of appeal.
  2. Such appeal must be filed within ten days from the date of the order and shall be given priority over all other pending matters before the court and heard as soon as possible, notwithstanding the provisions of § 19.2-241 providing time within which the court shall set criminal cases for trial. The clerk of the court from which an appeal is taken shall immediately transmit the record to the clerk of the circuit court.
  3. No appeal bond or writ tax shall be required and the appeal shall proceed without the payment of costs or other fees. Costs may be recovered as provided for in § 53.1-40.8 .
  4. The appeal to the circuit court shall be heard de novo. An order continuing the commitment shall be entered only if the criteria in § 53.1-40.2 are met at the time the appeal is heard. The prisoner so committed shall be entitled to trial by jury. Seven persons from a panel of thirteen shall constitute a jury in such cases.
  5. If such prisoner is not represented by counsel, the judge shall appoint an attorney to represent him. Counsel so appointed shall be paid a fee as provided in § 37.2-821 . The order of the court from which the appeal is taken shall be defended by the attorney for the Commonwealth.

History. 1988, c. 873; 1994, c. 211.

Editor’s note.

The Title 37.2 reference was changed to conform to the title recodification, effective October 1, 2005.

§ 53.1-40.5. Transfer of prisoner involuntarily admitted.

Whenever a prisoner is admitted to a hospital or facility for the care and treatment of individuals with mental illness, the Director may order the transfer of the prisoner to any other willing hospital or facility for the care and treatment of individuals with mental illness, and such other hospital or facility is authorized to admit such prisoner under the authority of the commitment order applicable to the hospital or facility from which such prisoner was transferred. No such transfer shall alter any right of a prisoner under the provisions of this article nor shall such transfer divest a judge or court, before which a hearing or request therefor is pending, of jurisdiction to conduct such hearing.

History. 1988, c. 873; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and twice substituted “individuals with mental illness” for “the mentally ill” in the first sentence.

§ 53.1-40.6. Periodic review of prisoner for purposes of retention.

The director of a hospital or facility shall require a review of the progress of each prisoner admitted to such hospital or facility to be conducted at intervals of thirty days, sixty days, and ninety days after admission of such prisoner and every six months thereafter to determine whether such prisoner should be retained at such hospital or facility. A record shall be kept of the findings of each review in the hospital’s or facility’s file on such prisoner.

History. 1988, c. 873.

§ 53.1-40.7. Discharge of prisoner involuntarily admitted.

  1. The prisoner shall be discharged from a hospital or facility for the care and treatment of individuals with mental illness to a state or local correctional facility designated by the Director if there is no further need for involuntary hospitalization or at the expiration of 180 days unless involuntarily committed by further petition and order of a court as provided herein.
  2. Notwithstanding the provisions of subsection A, if there is no further need for involuntary hospitalization, the prisoner may be retained in such hospital or facility if the prisoner (i) is capable of and consents to voluntary admission, and (ii) has been examined by a licensed physician, psychiatrist, or clinical psychologist acting on staff within his area of expertise and is determined to be in need of continued hospitalization.

History. 1988, c. 873; 2005, c. 639; 2012, cc. 476, 507.

The 2005 amendments.

The 2005 amendment by c. 639 redesignated the former section as subsection A and added subsection B.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals with mental illness” for “the mentally ill” in subsection A.

§ 53.1-40.8. Fees and expenses.

  1. Any special justice, as defined in § 37.2-100 , and any district court substitute judge who presides over hearings pursuant to the provisions of §§ 53.1-40.1 and 53.1-40.2 shall receive a fee as provided in § 37.2-804 for each commitment hearing under § 53.1-40.2 and each proceeding under § 53.1-40.1 ruling on competency or treatment and his necessary mileage. However, if the commitment hearing under § 53.1-40.2 and the proceeding under § 53.1-40.1 are combined for hearing or are heard on the same day, only one fee shall be allowed.
  2. Every physician or clinical psychologist who is not regularly employed by the Commonwealth of Virginia who is required to serve as a witness for the Commonwealth in any proceeding under this article shall receive a fee as provided in § 37.2-804 for each commitment hearing in which he serves. Other witnesses regularly summoned before a judge under the provisions of this article shall receive such compensation for their attendance and mileage as is allowed witnesses summoned to testify before grand juries.
  3. Every attorney appointed under this article shall receive a fee as provided in § 37.2-804 for each commitment hearing under § 53.1-40.2 and each proceeding under § 53.1-40.1 for which he is appointed. However, if the commitment hearing under § 53.1-40.2 and the proceeding under § 53.1-40.1 are combined for hearing or are heard on the same day, only one fee shall be allowed.
  4. Except as hereinafter provided, all expenses incurred, including the fees, attendance, and mileage aforesaid, shall be paid by the Commonwealth. Any such fees, costs, and expenses incurred in connection with an examination or hearing for an admission pursuant to § 53.1-40.2 or in connection with a proceeding under § 53.1-40.1 , when paid by the Commonwealth, shall be recoverable by the Commonwealth from the prisoner who is the subject of the examination, hearing, or proceeding or from his estate. Such collection or recovery may be undertaken by the Department. All such fees, costs, and expenses, if collected or recovered by the Department, shall be refunded to the Commonwealth. No such fees or costs shall be recovered, however, from the prisoner or his estate when no good cause for his admission exists or when the recovery would create an undue financial hardship.

History. 1988, c. 873; 1990, c. 221; 2005, c. 716.

The 2005 amendments.

The 2005 amendment by c. 716, effective October 1, 2005, substituted “37.2-804” for “37.1-89” in subsections A through C; and substituted “37.2-100” for “37.1-88” in subsection A; and made minor stylistic changes.

§ 53.1-40.9. Civil admission proceeding prior to release.

A prisoner whose release from the custody of the Department of Corrections is imminent and who may have a mental illness and be in need of hospitalization or treatment may be the subject of an involuntary admission proceeding under §§ 37.2-814 through 37.2-819 within 15 days prior to his anticipated release date, and any order entered in such proceedings shall be effective upon the release of the prisoner from the Department of Corrections. If a commitment hearing for involuntary admission under §§ 37.2-814 through 37.2-819 is combined for hearing or is heard on the same day with either a commitment hearing under § 53.1-40.2 or a proceeding under § 53.1-40.1 , or both, only one fee shall be allowed for the special justice or district court substitute judge conducting these proceedings and only one fee shall be allowed for the attorney representing the prisoner in these proceedings.

History. 1990, c. 221; 2005, c. 716.

The 2005 amendments.

The 2005 amendment by c. 716, effective October 1, 2005, in the first sentence, substituted “have a mental illness” for “be mentally ill,” “an involuntary admission” for “a commitment,” inserted “be” preceding “in need,” “or treatment” preceding “may be the subject,” and deleted “commitment” preceding “order entered”; in the first and second sentences, substituted “§§ 37.2-814 through 37.2-819 ” for “§ 37.1-67.3”; and made minor stylistic changes.

§ 53.1-40.10. Exchange of medical and mental health information and records.

  1. Whenever a person is committed to a state correctional facility, the following shall be entitled to obtain medical and mental health information and records concerning such person from a health care provider, even when such person does not provide consent or consent is not readily obtainable:
    1. The person in charge of the facility, or his designee, when such information and records are necessary (i) for the provision of health care to the person committed, (ii) to protect the health and safety of the person committed or other residents or staff of the facility, or (iii) to maintain the security and safety of the facility. Such information and records may be exchanged among administrative personnel for the facility in which the person is imprisoned as necessary to maintain the security and safety of the facility, its employees, or other prisoners. The information exchanged shall continue to be confidential and disclosure shall be limited to that necessary to ensure the security and safety of the facility.
    2. Members of the Parole Board, as specified in § 53.1-138 , in order to conduct the investigation required under § 53.1-155 .
    3. Probation and parole officers for use in parole and probation planning, release, and supervision.
    4. Officials within the Department for the purpose of formulating recommendations for treatment and rehabilitative programs; classification, security and work assignments; and determining the necessity for medical, dental, and mental health care, treatment, and programs.
    5. Medical and mental health hospitals and facilities, both public and private, including community services boards, for use in planning for and supervision of post-incarceration medical and mental health care, treatment, and programs.
    6. The Department for Aging and Rehabilitative Services, the Department of Social Services, and any local department of social services in the Commonwealth for the purposes of reentry planning and post-incarceration placement and services.
  2. Substance abuse records subject to federal regulations, Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. § 2.11 et seq., shall not be subject to the provisions of this section. The disclosure of results of a test for human immunodeficiency virus shall not be permitted except as provided in § 32.1-36.1 .
  3. The release of medical and mental health information and records to any other agency or individual shall be subject to all regulations promulgated by the Department that govern confidentiality of such records. Medical and mental health information concerning a prisoner that has been exchanged pursuant to this section may be used only as provided herein and shall otherwise remain confidential and protected from disclosure.
  4. The Department shall develop policies to improve the exchange of medical and mental health information and records of persons committed to a state correctional facility, including policies to improve access to electronic health records and electronic exchange of information and records for the provision of telemedicine and telepsychiatry.

History. 1991, c. 597; 2013, cc. 164, 235; 2018, c. 165; 2019, cc. 202, 827.

Editor’s note.

Acts 2019, c. 202, cl. 2 provides: “That the Department of Corrections shall report on its progress in implementing the provisions of this act to the Chairmen of the House Committee on Health, Welfare and Institutions, the Senate Committee on Education and Health, and the Joint Subcommittee to Study Mental Health Services in the Commonwealth in the 21st Century by October 1, 2019.”

Acts 2019, c. 827, cl. 3 provides: “That the Chairman of the Board of Corrections shall convene a work group to include representatives of sheriffs, superintendents of regional correctional facilities, community services boards, the Department of Behavioral Health and Developmental Services, the Department of Medical Assistance Services, the Virginia Association of Counties, the Virginia Municipal League, and such other stakeholders as the Director shall deem appropriate to determine the cost of implementing provisions of this act. The work group shall report its findings and conclusions to the Governor and the Chairmen of the House Committee on Appropriations, the House Committee for Courts of Justice, the House Committee on Health, Welfare and Institutions, the Senate Committee on Finance, the Senate Committee for Courts of Justice, the Senate Committee on Education and Health, and the Senate Committee on Rehabilitation and Social Services by November 1, 2019.”

The 2013 amendments.

The 2013 amendments by cc. 164 and 235 are identical, and added subdivision 6.

The 2018 amendments.

The 2018 amendment by c. 165 inserted “Whenever a person is committed to a state correctional facility, the person in charge of the facility or his designee shall be entitled to obtain medical records concerning such person from a health care provider. In addition” in the first paragraph.

The 2019 amendments.

The 2019 amendment by c. 202 designated the existing provisions as subsections A through C and added subsection D.

The 2019 amendment by c. 827 designated the existing provisions as subsections A through C; in subsection A, rewrote the introductory paragraph and subdivision 1, which read: “Whenever a person is committed to a state correctional facility, the person in charge of the facility or his designee shall be entitled to obtain medical records concerning such person from a health care provider. In addition, medical and mental health information and records of any person committed to the Department of Corrections may be exchanged among the following: 1. Administrative personnel for the facility in which the prisoner is imprisoned when there is reasonable cause to believe that such information is necessary to maintain the security and safety of the facility, its employees, or other prisoners. The information exchanged shall continue to be confidential and disclosure shall be limited to that necessary to ensure the safety and security of the facility”; and made stylistic changes.

Article 2.2. Treatment and Control of Prisoners Known to Be Pregnant.

§ 53.1-40.11. Definitions.

As used in this article, unless the context requires a different meaning:

“Postpartum recovery” means the eight-week period, or longer as determined by the health care professional responsible for the health and safety of the prisoner, following childbirth.

“Restraints” means any mechanical device, medication, physical intervention, or hands-on hold to prevent an individual from moving her body.

“Restrictive housing” means the same as that term is defined in § 53.1-39.1 .

“Solitary confinement” means isolation of a prisoner from the general population through confinement to a cell or other place for 22 or more hours within a 24-hour period.

History. 2020, c. 526.

§ 53.1-40.12. Treatment of prisoners known to be pregnant.

  1. The following restraints shall not be used on any prisoner known to be pregnant upon notification or diagnosis of the pregnancy and for the duration of the pregnancy, unless there is an individualized determination that the prisoner will harm herself, the fetus, the newborn child, or any other person or poses a substantial flight risk: (i) leg restraints, (ii) handcuffs or other wrist restraints, except to restrain the prisoner’s wrists in front of her, or (iii) restraints connected to other inmates. If there is an individualized determination that the prisoner will harm herself, the fetus, the newborn child, or any other person or poses a substantial flight risk and restraints are used, such restraints shall be the least restrictive possible.
  2. No restraints shall be used on any prisoner known to be pregnant while in labor or during delivery unless there is an individualized determination that the prisoner will harm herself, the fetus, the newborn child, or any other person or poses a substantial flight risk. If there is an individualized determination that the prisoner will harm herself, the fetus, the newborn child, or any other person or poses a substantial flight risk and restraints are used, such restraints shall be the least restrictive possible. In such case, the employee ordering the use of restraints on any prisoner known to be pregnant while in labor or during delivery shall submit a written report to the warden or other official in charge of the state correctional facility within 72 hours following the use of restraints, containing the justification for restraining the prisoner.
  3. No employee of the Department other than a licensed health care professional shall conduct body cavity searches of prisoners known to be pregnant unless the employee has a reasonable belief that the prisoner is concealing contraband. In such case, the employee shall submit a written report to the warden or other official in charge of the state correctional facility within 72 hours following the body cavity search, containing the justification for the search and what contraband was found, if any.
  4. The Department shall not place any prisoner known to be pregnant in restrictive housing or solitary confinement unless an employee of the Department has a reasonable belief that the inmate will harm herself, the fetus, the newborn child, or any other person or poses a substantial flight risk. In such case, the employee authorizing the placement of the inmate in restrictive housing or solitary confinement shall submit a written report to the warden or other official in charge of the state correctional facility within 72 hours following the transfer, containing the justification for confining the prisoner in restrictive housing or solitary confinement.
  5. The Department shall ensure that prisoners known to be pregnant are provided sufficient food and dietary supplements as ordered by a licensed physician or physician staff member to meet generally accepted prenatal nutritional guidelines for pregnant women.
  6. The Department shall not assign any prisoner known to be pregnant to any bed that is elevated more than three feet from the floor of the facility.

History. 2020, c. 526.

§ 53.1-40.13. Treatment of prisoners during postpartum recovery.

  1. No restraints shall be used on any prisoner who is in postpartum recovery, unless an employee of the Department has a reasonable belief that the prisoner will harm herself, her newborn child, or any other person or poses a substantial flight risk. If there is a reasonable belief that the prisoner will harm herself, her newborn child, or any other person or poses a substantial flight risk and restraints are used, such restraints shall be the least restrictive possible. In such case, the employee ordering the use of restraints shall submit a written report to the warden or other official in charge of the state correctional facility within 72 hours following the use of restraints, containing justification for restraining the prisoner.
  2. The Department shall not place any prisoner who has given birth in the past 30 days and is in postpartum recovery in restrictive housing or solitary confinement unless an employee of the Department has a reasonable belief that the inmate will harm herself, her newborn child, or any other person or poses a substantial flight risk. In such case, the employee authorizing the placement of the inmate in restrictive housing or solitary confinement shall submit a written report to the warden or other official in charge of the state correctional facility within 72 hours following the transfer, containing the justification for confining the prisoner in restrictive housing or solitary confinement.
  3. Following the delivery of a newborn child by a prisoner, the Department shall permit the newborn child to remain with the mother for 72 hours unless a licensed medical or mental health care professional has a reasonable belief that the newborn child remaining with the mother poses a health or safety risk to the newborn child. During the 72 hours, the Department shall make available the necessary nutritional and hygiene products to care for the newborn child, including diapers, and the necessary postpartum recovery products for the mother. If the prisoner qualifies as indigent, such products shall be provided without cost.

History. 2020, c. 526.

§ 53.1-40.14. Reporting requirement.

The warden or other official in charge of a state correctional facility shall compile a monthly summary of all written reports received pursuant to §§ 53.1-25.1 , 53.1-40.12 , and 53.1-40.13 and shall submit the summary to the Director each month.

History. 2020, c. 526.

§ 53.1-40.15. Training of correctional facility employees regarding pregnant inmates.

For correctional officers, and juvenile correctional officers who may have contact with pregnant inmates, the compulsory minimum entry-level training standards established pursuant to § 9.1-102 shall include training on the general care of pregnant women, the impact of restraints on pregnant inmates and fetuses, the impact of being placed in restrictive housing or solitary confinement on pregnant inmates, and the impact of body cavity searches on pregnant inmates.

History. 2020, c. 526.

§ 53.1-40.16. Education for pregnant prisoners.

The Department shall provide, to the extent practicable, educational programming for prisoners known to be pregnant related to (i) prenatal care, (ii) pregnancy-specific hygiene, (iii) parenting skills, (iv) the impact of alcohol and drugs on the fetus, (v) postpartum recovery health, and (vi) the general health of children.

History. 2020, c. 526.

Article 3. Employment and Training of Prisoners.

§ 53.1-41. Opportunities for work and career and technical education.

  1. To the extent feasible, it shall be the duty of the Director to provide persons sentenced to the Department with opportunities to work and to participate in career and technical education programs. Such work opportunities may include business, industrial, agricultural, highway maintenance and construction, and work release programs as hereafter specified in this article. In addition, prisoners may be employed to improve, repair, work on or cultivate public property or buildings.In addition to meeting the qualifications for work performance and security compatibility, preference for placement in work programs shall be given to any prisoner who requests a work assignment and assigns a minimum of 50 percent of his earnings to his child support obligation.
  2. When a person committed to the Department owes any court imposed fines, costs, forfeitures, restitution or penalties, he shall be required as a condition of participating in any work program to either make full payment or make payments in accordance with an agreed upon installment or deferred payment plan while participating in such work program. If, after the person enters into an installment or deferred payment agreement, the person fails to pay as agreed, his participation in the work program may be terminated until all fines, costs, forfeitures, restitution and penalties are satisfied. The Director shall withhold such payments from any amounts due to such person.

History. Code 1950, §§ 53-33, 53-57, 53-224; 1970, c. 648; 1982, c. 636; 2001, c. 483; 2006, c. 98; 2010, c. 616; 2012, cc. 803, 835.

Editor’s note.

Acts 2001, c. 483, cl. 2, provides: “That this act shall not be construed to require any local school board to rename its vocational schools or programs or to require any public or private vocational school to change its name; however, any public school having in its name the terms vocational or vocational technical or any variation of these terms and designated by a local school board to be a vocational or vocational technical school shall comply with the relevant requirements for career and technical education set forth in Title 22.1 of the Code of Virginia and the applicable regulations.”

Acts 2001, c. 483, cl. 3, provides: “That nothing contained in this act shall be construed to require expenditure of funds to realign any name with the term ‘career and technical education’ or to require any redesigning or reprinting of any logo, stationery, informational material or website. In addition, any stationery, pamphlets or other printed material referring to vocational education or some other term denoting career and technical education requiring an eventual revision of a state program or name may continue to be used in the normal course of business until consumed before being redesigned and reprinted.”

Acts 2001, c. 483, cl. 4, provides: “That, further, whenever any references are used in the Code of Virginia to vocational education or to vocational technical education or, when used to denote an education program, to vocational rehabilitation or any other state or local program name that clearly relates to career and technical education within its context, such terms shall be deemed to be subsumed by, synonymous with and included in the term ‘career and technical education.’ ”

Acts 2001, c. 483, cl. 5, provides: “That this act shall not be construed to require any additional services or changes in services in any state or local program or to require any such program to deliver different services than are required by applicable law.”

The 2001 amendments.

The 2001 amendment by c. 483 substituted “career and technical education” for “vocational training.”

The 2006 amendments.

The 2006 amendment by c. 98 added the second paragraph.

The 2010 amendments.

The 2010 amendment by c. 616 inserted the A designation at the beginning of the first paragraph; and added subsection B.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 99, are identical, and in subsection A, deleted “as operated by the Department of Correctional Education in accordance with § 22.1-339 et seq.” from the end of the first sentence, and made a minor stylistic change.

Law Review.

For note, “Decency and Fairness: An Emerging Judicial Role in Prison Reform,” see 57 Va. L. Rev. 841 (1971).

OPINIONS OF THE ATTORNEY GENERAL

Employment of prisoners to perform roofing work. —

This section authorizes the Department of Corrections to employ prisoners to perform roofing work on buildings located on the prison grounds. See opinion of Attorney General to The Honorable Harry B. Blevins, Member, Senate of Virginia, 02-105 (11/15/02).

§ 53.1-42. Allowance for work and disposition thereof.

Every prisoner committed and transferred to the Department and thereafter confined for the sentence for which he was committed in a state or local correctional facility shall be allowed an amount to be established by the Director for each day of labor satisfactory to the superintendent or sheriff in whose charge he is. The allowance so made shall accumulate and be paid over to the prisoner upon discharge, except that an amount thereof to be determined by the Director may be drawn upon by the prisoner for such purposes as may be authorized by the regulations of the Director.

For the purposes of this section only, the phrase “transferred to the Department” means (i) the actual physical receipt by the Department of a prisoner in a state correctional facility or (ii) the complete processing by the Department of a prisoner for the purposes of classifying the person as a state prisoner whether or not the person is physically received into a state correctional facility.

History. Code 1950, § 53-220.1; 1970, c. 339; 1982, c. 636; 2020, c. 759.

The 2020 amendments.

The 2020 amendment by c. 759 substituted “Director” for “Board” wherever it appears.

§ 53.1-43. Pay incentives for prisoners.

The Director may establish a system of pay incentives for prisoners confined in any state correctional facility. Such system may provide for the payment of a bonus to any prisoner who is assigned to employment in any position of responsibility or who performs his job in an exemplary manner.

History. Code 1950, § 53-222; 1968, c. 590; 1982, c. 636; 2020, c. 759.

The 2020 amendments.

The 2020 amendment by c. 759 deleted “subject to the approval of the Board” following “may” in the first sentence and made stylistic changes.

§ 53.1-43.1. Inmate trust accounts.

In addition to any other account established to hold funds for inmates, the Department shall establish for each inmate a personal trust account. Unless an inmate has been sentenced to be executed, is serving a sentence of life without the possibility of parole, or is sentenced to a term that makes him ineligible for release, excluding the conditional release of geriatric prisoners pursuant to § 53.1-40.01 , prior to 75 years of age, 10 percent of any funds received by an inmate from any source shall be deposited by the Department in the inmate’s personal trust account until the account has a balance of $1,000. When the inmate’s personal trust account reaches $1,000, any funds received by the inmate shall be deposited in the inmate’s other account.

An inmate may direct the Department at any time to deposit a portion or all of any funds received by him in the inmate’s personal trust account. After the balance of a personal trust account has exceeded $1,000, an inmate may direct the Department to transfer funds from his personal trust account to any other account maintained for him; provided, however, that the balance of the personal trust account shall not fall below $1,000.

Funds in an inmate’s personal trust account shall be paid to the inmate upon parole or final discharge.

History. 2011, cc. 260, 284; 2017, c. 205.

Editor’s note.

Acts 2011, cc. 260 and 284, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2012.”

The 2017 amendments.

The 2017 amendment by c. 205, in the first paragraph, inserted “or is sentenced to a term that makes him ineligible for release, excluding the conditional release of geriatric prisoners pursuant to § 53.1-40.01 , prior to 75 years of age” and made related changes.

§ 53.1-44. Investment of funds belonging to prisoners; use of income.

Portions of the funds held by the Director or by any state correctional facility, which belong to prisoners may, in the discretion of the Director, be invested in bonds of the Commonwealth of Virginia or of the United States or in federally-insured investments. In determining how to invest the funds, the Director shall balance any long-term investments with those which permit ready accessibility to the funds. Any income or increment of increase received from the bonds or investments may be used by the Director for the benefit of the prisoners under his care.

History. Code 1950, § 53-223; 1970, c. 648; 1982, c. 636.

Michie’s Jurisprudence.

For related discussion, see 14B M.J. Prisons and Prisoners, § 8.

CASE NOTES

Constitutionality. —

The portion of this section permitting the Director of the Department of Corrections to use interest earned on the investment of funds belonging to prisoners for the benefit of the prisoners did not result in an unconstitutional taking without just compensation, where the interest was returned on a proportionate basis to the various correctional facilities and used by them to purchase items for the benefit of all prisoners, such as library books, newspaper and magazine subscriptions, recreation equipment, items for family visiting days and other collectively used “extras.” Washlefske v. Winston, 60 F. Supp. 2d 534, 1999 U.S. Dist. LEXIS 12893 (E.D. Va. 1999), aff'd, 234 F.3d 179, 2000 U.S. App. LEXIS 31171 (4th Cir. 2000).

Because an inmate’s limited right to the funds in his prison accounts does not derive from any traditional principle of common law but from a Virginia statute, he is not deprived of any property, for the purposes of a takings clause analysis, when the department of corrections follows the dictates of this statute in using the interest generated from those accounts. Washlefske v. Winston, 234 F.3d 179, 2000 U.S. App. LEXIS 31171 (4th Cir. 2000), cert. denied, 532 U.S. 983, 121 S. Ct. 1627, 149 L. Ed. 2d 488, 2001 U.S. LEXIS 3084 (2001).

Use of interest on inmates funds not a “taking.” —

The director of correction’s use of the interest on inmate funds held in a trust account for the benefit of the prisoners under his care pursuant to this section does not constitute a “taking” under the constitution for which the government is required to provide just compensation. Chalmers v. Winston, 95 F. Supp. 2d 536, 2000 U.S. Dist. LEXIS 6399 (E.D. Va. 2000).

§ 53.1-45. Sale of prison goods and services; print shop.

  1. Articles produced or manufactured and services provided by prisoners sentenced to state correctional facilities may be disposed of by the Director by sale only to municipal and county agencies in Virginia and to federal, state and local public agencies within or without the Commonwealth or as the Director, with the approval of the Governor, may deem to be in the best interests of the Commonwealth. Except as otherwise provided, no articles produced or manufactured nor services provided by prisoners may be bought, sold or acquired by exchange on the open market.
  2. The products of any printing shop in any state correctional facility shall be sold only to the departments, institutions and agencies of the Commonwealth which are supported in whole or in part with funds from the state treasury and to offices or agencies of the counties, cities and towns of the Commonwealth. Such products shall not be sold on the open market except as provided in § 53.1-45.1 .
  3. The Department shall not offer manufactured goods for resale to any department, agency or institution of the state unless those goods (i) have been incorporated into a finished product produced or manufactured by prisoners, (ii) are necessary for use with a product produced or manufactured by prisoners, or (iii) are a component part of a product system, a portion of which comprises goods produced or manufactured by prisoners.

History. Code 1950, §§ 53-63, 53-64; 1970, c. 648; 1977, c. 540; 1982, c. 636; 1983, c. 186; 1993, cc. 464, 488; 1998, c. 240.

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 400 E, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of § 53.1-45 , Code of Virginia, the Department of Corrections is authorized to sell on the open market and through the Virginia Farmers’ Market Network any dairy, animal, or farm products of which the Commonwealth imports more than it exports.”

The 1998 amendment added subsection C.

§ 53.1-45.1. Work programs; agreements with other entities.

  1. The Director, with the prior approval of the Governor, may enter into an agreement with a public or private entity to operate a work program in a state correctional facility for prisoners confined therein.
  2. Articles produced or manufactured and services provided by prisoners participating in such a program may be purchased as provided in § 53.1-47 and may be bought, sold or acquired by exchange on the open market through the participating public or private entity.
  3. The Director shall arrange for compensation for such employment. Wages earned by prisoners shall be paid to the Director who shall deduct from such wages, in the following order of priority, an amount to:
    1. Meet the obligation of any judicial or administrative order to provide support and such funds shall be disbursed according to the terms of such order;
    2. Pay any fines, restitution or costs as ordered by the court; and
    3. Defray a portion of the prisoner’s keep.The balance shall be credited to the prisoner’s account in accordance with § 53.1-42 .

History. 1993, cc. 464, 488; 1996, cc. 284, 368; 2003, cc. 94, 854.

The 2003 amendments.

The 2003 amendment by cc. 94 and 854 are identical, and deleted former subsections B and C, which read: “B. The provisions of any proposed agreement shall be submitted for review to the Virginia Correctional Enterprises Advisory Board established pursuant to § 53.1-45.2 ” and “C. The Board shall promulgate regulations governing the form and review process for proposed agreements”; redesignated former subsections D and E as present subsections B and C; and in present subsection C, deleted “in accordance with regulations promulgated by the Board” following who shall.”

OPINIONS OF THE ATTORNEY GENERAL

Agreement with private company for employment of prisoners. —

Subsection A of this section authorizes the Director of the Department of Corrections to permit prisoners to be trained, housed and paid by a private ship-disposal firm to dismantle the ships at the James River Reserve Fleet site, provided that the Director receives prior approval of the Governor and properly designates the site as a state correctional facility pursuant to § 53.1-19 . See opinion of Attorney General to The Honorable David B. Albo, Member, House of Delegates, 03-042 (9/30/03).

§§ 53.1-45.2 through 53.1-45.5. Repealed by Acts 2003, cc. 94 and 854, cl. 2.

§ 53.1-46. Sale of artistic products.

Subject to such rules as he may prescribe, the Director may permit prisoners confined in state correctional facilities to sell to the public artistic products personally crafted by the prisoners. Such artistic products shall include, but are not limited to, paintings, pottery and leatherwork.

History. 1982, c. 636.

§ 53.1-47. Purchases by agencies, localities, and certain nonprofit organizations.

Articles and services produced or manufactured by persons confined in state correctional facilities:

  1. Shall be purchased by all departments, institutions, and agencies of the Commonwealth that are supported in whole or in part with funds from the state treasury for their use or the use of persons whom they assist financially. Except as provided in § 53.1-48 , no such articles or services shall be purchased by any department, institution, or agency of the Commonwealth from any other source; and
  2. May be purchased by any county, district of any county, city, or town and by any nonprofit organization, including volunteer emergency medical services agencies, fire departments, sheltered workshops, and community service organizations.

History. Code 1950, § 53-67; 1970, c. 648; 1972, c. 54; 1975, c. 647; 1980, c. 240; 1982, cc. 499, 636, 647; 1993, cc. 464, 488; 2015, cc. 502, 503.

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 400 F, effective for the biennium ending June 30, 2022, provides: “It is the intention of the General Assembly that § 53.1-47 , the Code of Virginia, concerning articles and services produced or manufactured by persons confined in state correctional facilities, shall be construed such that the term ‘manufactured’ articles shall include ‘remanufactured’ articles.”

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical, and substituted “emergency medical services agencies” for “lifesaving or first aid crews, rescue squads” in subdivision 2; and made stylistic changes.

OPINIONS OF THE ATTORNEY GENERAL

Purchases under the Public-Private Education Facilities and Infrastructure Act of 2002

are not exempt from the mandatory language of this section, but that section is not applicable to all procurements contemplated under the Act. See opinion of Attorney General to Mr. Gene M. Johnson, Director, Virginia Department of Corrections, 08-005 (2/27/08).

§ 53.1-48. Exceptions as to purchases.

A department, institution, or agency of the Commonwealth may be granted an exemption from the provisions of § 53.1-47 with the written consent of the Chief Executive Officer of the Virginia Correctional Enterprises Program in any case where (i) the article so produced or manufactured does not meet the reasonable requirements of the department, institution, or agency, (ii) an identical article can be obtained at a verified lesser cost from the private sector, which is evidenced by a verified request for pricing, or (iii) the requisition made cannot be complied with on account of an insufficient supply of the articles or supplies required, or otherwise. In any case where an exemption from the provisions of § 53.1-47 is not granted as provided in this section, the Chief Executive Officer of the Virginia Correctional Enterprises Program shall provide a written justification for the denial to the department, institution, or agency that requested the exemption.

History. Code 1950, § 53-69; 1958, c. 124; 1982, cc. 499, 636; 1984, c. 720; 2012, c. 360; 2019, c. 167.

The 2012 amendments.

The 2012 amendment by c. 360 rewrote the section.

The 2019 amendments.

The 2019 amendment by c. 167 inserted “written” preceding “consent,” deleted “both the Director of the Division of Purchases and Supply and” following “consent of” in the first sentence, inserted “not” following “§ 53.1-47 is,” deleted “the Director of Purchases and Supply and” preceding “the Chief Executive Officer,” substituted “provide” for “submit,” substituted “denial” for “exemption,” and substituted “department, institution, or agency that requested the exemption” for “Director of the Department of Corrections and the Director of the Department of General Services” in the second sentence.

§ 53.1-49. Evasion by variance from specifications of Director.

No department, institution or agency of the Commonwealth shall be allowed to evade the intent and meaning of §§ 53.1-47 and 53.1-48 by slight variations from specifications adopted by the Division of Purchases and Supply of the Department of General Services pursuant to § 2.2-1112 , when the articles produced or manufactured in accordance with specifications of the Department are reasonably adapted to the actual needs of the department, institution or agency.

History. Code 1950, § 53-70; 1982, cc. 636, 647.

§ 53.1-50. Vouchers, certificates and warrants not to be questioned.

No voucher, certificate or warrant issued on the Comptroller by any such department, institution or agency shall be questioned by him or by the State Treasurer on the ground that §§ 53.1-47 through 53.1-49 and § 53.1-52 have not been complied with by such department, institution or agency.

History. Code 1950, § 53-71; 1982, c. 636.

§ 53.1-51. Intentional violations constitute malfeasance.

Intentional violations of §§ 53.1-47 through 53.1-49 and § 53.1-52 by any such department, institution or agency, continued after notice from the Governor to desist, shall constitute malfeasance in office, and shall subject the officer or officers responsible for such violations to suspension or removal from office, as may be provided by law in other cases of malfeasance.

History. Code 1950, § 53-72; 1982, c. 636.

§ 53.1-52. Procedure for purchases.

All purchases, except for those of information technology and telecommunications goods and services as provided in § 2.2-2012 , made by departments, institutions and agencies of the Commonwealth shall be made as provided by the Division of Purchases and Supply of the Department of General Services. All purchases of information technology and telecommunications made by departments, institutions, and agencies of the Commonwealth shall be made as provided by the Virginia Information Technologies Agency. All other purchases shall be upon requisition by the proper authority of the county, district, city or town requiring such articles.

History. Code 1950, § 53-68; 1958, c. 124; 1982, cc. 636, 647; 2003, cc. 895, 981, 1021.

Editor’s note.

Acts 2003, c. 895, cl 2, provides: “That the provisions of this act shall not in any way amend or affect the Commonwealth’s institutions of higher education as such institutions may be delegated the authority for the purchase of information technology facilities and services pursuant to the 2002-2004 Appropriation Act adopted by the General Assembly.”

Acts 2003, c. 895, cl. 3 provides: “That the provisions of this act shall not in any way amend or affect existing delegations of telecommunications procurement authority granted by the Department of Information Technology to public bodies or inhibit the ability of the Department to grant future delegations of such authority.”

Acts 2003, cc. 981 and 1021, cl. 16 provides: “That the provisions of this act shall not in any way amend or affect the existing delegations of telecommunications procurement granted by the Department of Information Technology or the Virginia Information Technologies Agency, as its successor in interest, to public bodies or inhibit the ability of the Department of Information Technology or the Virginia Information Technologies Agency as its successor in interest, to grant future delegations of such authority.”

The 2003 amendments.

The 2003 amendment by c. 895 inserted “except for those of telecommunications and information technology as provided in § 2.2-1303, made” in the first sentence and added a second sentence which is substantially the same as the sentence added by Acts 2003, cc. 981 and 1021.

The 2003 amendments by cc. 981 and 1021 are identical, and inserted “except for those of information technology and telecommunications goods and services as provided in § 2.2-2007 , made” in the first sentence, and inserted the present second sentence.

§ 53.1-53. Transfer or sale of by-products of manufacturing processes.

In those industries operated by the Department in which saleable by-products are generated while producing primary products, such by-products shall not be classified as surplus supplies or equipment. Such by-products shall be disposed of as provided in § 2.2-1124 . Proceeds from the sale of such by-products shall be paid into the state treasury and credited to the special funds account of the generating industry.

History. 1982, c. 636.

§ 53.1-54. Charges and catalogue; annual estimates of requirements by departments, etc.

  1. The Director shall establish charges for articles produced or manufactured and services provided by prison labor that will, in his judgment, defray the administration, operation and maintenance costs and make allowances for depreciation, return on capital and contingencies.
  2. A catalogue shall be prepared by the Department on a periodic basis which describes all articles and supplies manufactured and produced by persons confined in state correctional facilities. Copies of the catalogue shall be sent to all departments, institutions and agencies of the Commonwealth mandated to purchase such articles and supplies. At least thirty days before the commencement of each fiscal year, the proper official of each department, institution and agency of the Commonwealth shall report to the Division of Purchases and Supply estimates of the kinds and amounts of articles and supplies required by it for the ensuing year. Such estimates shall refer to the catalogue issued by the Director insofar as the articles and supplies indicated are included within the catalogue.

History. Code 1950, §§ 53-62, 53-73; 1958, c. 124; 1970, c. 648; 1982, c. 636.

§ 53.1-55. Sale or exchange of goods manufactured by prisoners of other states.

It shall be unlawful for any person within this Commonwealth to buy or acquire by exchange on the open market, either for his own use or for the purpose of resale, or for any person to sell or exchange on the open market within this Commonwealth, any goods, wares or merchandise prepared in whole or in part, or manufactured by prisoners of any other state, other than prisoners on parole or probation.

Any person or any agent or manager for any person who shall violate any provision of this section shall be guilty of a misdemeanor and shall, upon conviction thereof, be punished by a fine of not more than $500 or imprisonment for not more than one year, or both in the discretion of the court or jury trying the case.

History. Code 1950, § 53-74; 1982, c. 636.

§ 53.1-56. Construction and maintenance of highways; grass cutting; acquisition of quarries, etc.; use of materials for county roads.

Persons sentenced to the Department shall, so far as practicable, be employed in the construction and maintenance of the primary state highway system and secondary system of state highways, and to this end may be used in rock quarries, gravel pits and other plants in the preparation of materials for construction and maintenance of roads and in the maintenance of any or all medians and other nontraveled portions of such highways. Persons sentenced to the Department may also be employed in the maintenance of the rest areas along the Interstate Highway System, providing that such maintenance activities are jointly approved by the Department and the Virginia Department of Transportation based on the safety of the traveling public.

The Commonwealth Transportation Board may acquire out of the proceeds of the money, now or hereafter available for construction and maintenance of the primary state highway system and secondary system, such quarries, gravel pits or plants as may in its opinion be necessary for such work. The Board shall on the request of any county road authorities allow such county road authorities to take from such quarries or gravel pits or shall sell to such county road authorities at cost of production such materials as may be required to be used for the construction and maintenance of county roads. This arrangement shall in no way interfere with the furnishing of materials by the Board for the maintenance or construction of the primary state highway system and secondary system.

The Department of Transportation shall make requisition from time to time upon the Director for the number of prisoners it deems necessary for the work on the primary state highway system or secondary system or for the preparation of road material for road construction and maintenance, in the maintenance of any or all medians and other nontraveled portions of such highways, and in the maintenance of the rest areas along the Interstate Highway System. The number of prisoners so requisitioned shall be furnished subject to availability as determined by the Director of the Department of Corrections.

Fifteen days prior to a prisoner’s participation in the program, the Director shall give the chief of police, sheriff or local chief law-enforcement official of the locality in which the prisoner will work, notice of the prisoner’s participation. Such notice shall include the name, address and criminal history of the prisoner, in addition to other information the chief of police or such officer may request. The transmission of information shall be confidential and not subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

History. Code 1950, § 53-109; 1970, c. 648; 1974, c. 128; 1982, c. 636; 1989, c. 652; 2010, c. 128; 2011, cc. 40, 48; 2013, cc. 585, 646.

Editor’s note.

Acts 2013, cc. 585 and 646, cl. 2 provides: “That the provisions of this act shall not be construed to invalidate any action taken or approval rendered by the Commonwealth Transportation Board prior to July 1, 2013, and that any and all actions taken and all approvals rendered by the Board prior to July 1, 2013, shall remain valid and in effect unless modified, superseded, or repealed by subsequent action of the Board.”

At the direction of the Virginia Code Commission, “primary state highway system” was substituted for “State Highway System” throughout this section to conform to changes by Acts 2014, c. 805.

The 2010 amendments.

The 2010 amendment by c. 128 added “and in the maintenance of any or all medians and other nontraveled portions of such highways” at the end of the first paragraph and at the end of the first sentence of the third paragraph.

The 2011 amendments.

The 2011 amendments by cc. 40 and 48, in the first paragraph, added the last sentence; and in the next-to-last paragraph, added “and in the maintenance of the rest areas along the Interstate Highway System” at the end of the first sentence.

The 2013 amendments.

The 2013 amendments by cc. 585 and 646 are identical, and substituted “Department of Transportation” for “Commonwealth Transportation Board” near the beginning of the third paragraph.

§ 53.1-57. Payments by Department of Transportation to Director for labor.

The Department of Transportation shall pay to the Director monthly for the hours prisoners are employed on the state highway primary system and secondary system and work incidental thereto, an amount agreed upon by the Department of Corrections and the Department of Transportation. Monthly payments by the Department to the Director shall be made not later than the fifteenth day of the succeeding month after the work or labor has been performed for the Department.

History. Code 1950, § 53-71; 1958, c. 324; 1960, c. 450; 1970, c. 648; 1982, c. 636; 2013, cc. 585, 646.

Editor’s note.

Acts 2013, cc. 585 and 646, cl. 2 provides: “That the provisions of this act shall not be construed to invalidate any action taken or approval rendered by the Commonwealth Transportation Board prior to July 1, 2013, and that any and all actions taken and all approvals rendered by the Board prior to July 1, 2013, shall remain valid and in effect unless modified, superseded, or repealed by subsequent action of the Board.”

The 2013 amendments.

The 2013 amendments by cc. 585 and 646 are identical, and substituted “Department of Transportation” for “Commonwealth Transportation Board” near the beginning of the first sentence, and substituted “Department” for “Board” twice in the last sentence.

§ 53.1-58. Highway employees as guards.

The Director, with the consent of the Commissioner of Highways, may appoint and authorize employees of the Department of Transportation to act as guards of prisoners when such prisoners are at work on the roads under the jurisdiction of the Commonwealth Transportation Board. Such employees shall be deemed to be acting within the scope of their official duties for the Board when acting as guards pursuant to this section. The Director may authorize such employees to carry firearms in accordance with § 53.1-29 .

History. Code 1950, § 53-122; 1958, c. 572; 1970, c. 648; 1982, c. 636.

Editor’s note.

Acts 2011, cc. 36 and 152, cl. 3 provides: “That the Virginia Code Commission shall carry out such editorial changes to the Code of Virginia as may be required to reflect the provisions of this act changing the title ‘Commonwealth Transportation Commissioner’ to ‘Commissioner of Highways.”’ “Commissioner of Highways” was substituted for “Commonwealth Transportation Commissioner” in this section.

§ 53.1-59. Prisoners performing work for localities, state agencies or nonprofit civic organizations; payment of costs; foremen as guards.

The Director is authorized to enter into agreements with the proper authorities of any state agency, county, city, town, local commission or nonprofit civic organization in the Commonwealth to build and maintain roads and streets and to perform such other public works as he may approve. The state agency, county, town, city, local commission or nonprofit civic organization for which such work is performed may be required to pay to the Department in monthly installments such sum as is necessary to cover the costs of work done by such prisoners at the rate specified in the agreement authorized by § 53.1-57 .

The state agency, county, town, city, local commission or nonprofit civic organization that has the use of prison labor authorized by this section shall designate the projects to be worked. It may be required to furnish all engineering service, tools, implements, machinery and equipment used in such projects; shall secure rights-of-way; and shall furnish such foremen as the Director deems necessary and acceptable to direct the work. The Director may authorize such persons employed as foremen to carry firearms in accordance with § 53.1-29 .

Fifteen days prior to a prisoner’s participation in the program, the Director shall give the chief of police, sheriff or local chief law-enforcement official of the locality in which the prisoner will work, written notice of the prisoner’s participation. Such notice shall include the name, address and criminal history of the prisoner in addition to other information the chief of police or such officer may request. A copy of such notice shall be provided to the attorney for the Commonwealth and the governing body where the work is to be performed. The transmission of information shall be confidential and not subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). When notice has been requested in accordance with § 53.1-133.02 , the Director shall provide notice to the victim that the prisoner has been assigned to a facility where the prisoner may participate in supervised work programs established pursuant to this section.

History. Code 1950, § 53-122.1; 1962, c. 370; 1970, c. 648; 1982, c. 636; 1989, c. 652; 1991, c. 412; 1996, cc. 703, 726.

§ 53.1-60. Extending limits of confinement of state prisoners for work and educational programs; disposition of wages; support of certain dependents; penalties for violations.

  1. The Director is authorized to establish work release programs whereby (i) a prisoner who is proficient in any trade or occupation and whom the Director is satisfied is trustworthy, may be approved for employment by private individuals, corporations or state agencies at places of business, or (ii) a prisoner whom the Director is satisfied is trustworthy and capable of receiving substantial benefit from educational and other related community activity programs that are not available within a state correctional facility may attend such programs outside of the correctional facility, without a correctional officer during any hour of the day or night. Such prisoner shall travel directly to, from or be in authorized attendance or employment at such place of business, educational or related community activity program.
  2. The Director is authorized to arrange for the temporary care of prisoners who are deemed capable of participation in the programs established herein in approved local or community correctional facilities. The hours of employment or attendance shall be arranged by the Director. In the event of a legally sanctioned strike at the prisoner’s place of employment, the prisoner in the work release program shall be withdrawn from the employment for the duration of the strike.
  3. The compensation for such employment shall be arranged by the Director and shall be the same as that of regular employees in similar occupations. Any wages earned shall be paid to the Director. The Director shall, in accordance with regulations promulgated by the Director, deduct from such wages, in the following order of priority, an amount to:
    1. Meet the obligation of any judicial or administrative order to provide support and such funds shall be disbursed according to the terms of such order;
    2. Pay any fines, restitution or costs as ordered by the court;
    3. Pay travel and other such expenses made necessary by his work release employment or participation in an educational or rehabilitative program, including the sums specified in § 53.1-150 ; and
    4. Defray the prisoner’s keep.The balance shall be credited to the prisoner’s account or sent to his family in an amount the prisoner so chooses.
  4. Any prisoner who has been placed in any of the programs authorized herein shall, while outside the state correctional facility or approved local or community correctional facility to which he is assigned, be deemed to be in custody whether or not he is under the supervision of a correctional officer. If the prisoner, without proper authority or without just cause, leaves the area in which he has been directed to work or to attend educational or community activity programs, or the vehicle or route involved in his traveling to or from such place or program, he may be found guilty of escape as provided for in § 18.2-477 as though he had left the state, local or community correctional facility itself, or, if there are mitigating circumstances or the culpability of the prisoner is minimal, he may be found guilty of a Class 2 misdemeanor.
  5. The Director and any sheriff or other administrative head of any local correctional facility are authorized to enter into agreements whereby persons committed to the Department, whether such persons are housed in a state or local correctional facility, and who meet the Department’s standards for such release may participate in local work release programs or in educational or other rehabilitative programs operating pursuant to § 53.1-131 . Any person so placed shall be governed by the rules and regulations applicable to local work release programs.
  6. The provisions of § 53.1-131 shall apply to any person convicted of a felony but confined in jail pursuant to § 53.1-20 and participating in work, rehabilitation, or education programs.

History. Code 1950, § 53-38; 1968, c. 152; 1970, c. 114; 1972, c. 55; 1973, c. 114; 1975, c. 322; 1976, cc. 295, 475; 1978, c. 660; 1979, cc. 127, 706; 1981, c. 634; 1982, c. 636; 1984, c. 516; 1985, c. 488; 1988, c. 397; 1990, cc. 107, 676, 768; 1994, c. 487; 2020, c. 759.

Cross references.

As to punishment for Class 2 misdemeanors, see § 18.2-11 .

Editor’s note.

Acts 1990, c. 676, cl. 2, and c. 768, cl. 2, provide: “That the Secretary of Public Safety shall develop by July 1, 1991, a plan for the orderly implementation of the transfer of responsibility for certain felons from state to local correctional authorities and for the transfer of felons between state and local correctional facilities as required by this act. Such plan shall provide for maintenance of current efforts to transfer prisoners with sentences of more than two years into state correctional facilities.”

The 2020 amendments.

The 2020 amendment by c. 759, in subsection A, deleted “subject to such rules and regulations as the Board may prescribe” following “work release programs” in the introductory language of the first sentence; in subsection C, substituted “by the Director” for “by the Board” in the last sentence of the introductory paragraph and made stylistic changes.

CASE NOTES

Editor’s note.

The cases annotated below were decided under prior law.

A prisoner has no right to participate in a work-release program. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

There is no right under the general provisions of the Constitution itself for prisoners to participate in furlough and work-release programs. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

Nor any expectation of non-termination. —

A prisoner has no expectation that his participation in a work-release program can be terminated only under certain limited, defined conditions under the State statutory scheme regulating work-release. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

Summary suspension, etc., not unconstitutional. —

A regional superintendent for work-release did not deprive prisoner of any liberty or property interest under the Fourteenth Amendment when he summarily revoked his furlough and suspended him from participation in work-release. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

A finding that correction officials could not, consistently with the Constitution, revoke a single furlough and temporarily suspend participation in a work-release program without prior notice and a hearing would place the courts astride the day-to-day functioning of State prisons and involve the judiciary in issues and discretionary decisions that are not the business of federal judges. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

Suspension from work-release, etc., for use of vulgar language not violative of right of free speech. —

Cancellation of a prisoner’s furlough, two days suspension from participation in work-release program and disciplinary action imposed directly on account of vulgar and insolent language used by the prisoner on the phone to a corrections official did not violate prisoner’s right of free speech as guaranteed by the First and Fourteenth Amendments to the Constitution. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

Employed convicts entitled to workmen’s compensation. —

There is nothing in this section to indicate that once a convict has started his day’s work he is controlled in his activities other than by his employer. His pay is the same as other employees doing like work, and he is obviously afforded the benefits of the Virginia Workers’ Compensation law as is the case with other employees. Owens v. Swift Agric. & Chem. Corp., 477 F. Supp. 91, 1979 U.S. Dist. LEXIS 9887 (E.D. Va.), aff'd, 612 F.2d 1309 (4th Cir. 1979).

§ 53.1-60.1. Duties of Director in collecting court-imposed debt.

Upon receipt of a valid court order or judgment against a person confined in a state correctional facility, the Director or his designee shall satisfy, to the extent possible, the amount required to be paid by the order or judgment from the inmate’s trust account. The Director shall promulgate regulations governing the process of collecting funds from inmates to be used for (i) the satisfaction of judgments or orders granting monetary relief or imposing fines or other monetary sanctions or (ii) payment of court costs and fees.

History. 1998, c. 596.

§ 53.1-61. Determination whether prisoner has dependents receiving public assistance; payment of portion of earnings; remedies for enforcement of support obligation.

  1. In order to determine whether a prisoner to be released for employment as provided in § 53.1-60 has dependents receiving public assistance benefits, the Director may require such person to reveal the identity and residence of any dependents as a condition to release. The Director shall notify any such dependents, the local department of social services where such dependents reside and the Commissioner of Social Services of the release of such person for employment. Upon request of the local department of social services or the Commissioner of Social Services, the Director shall withhold and pay over a portion of the person’s earnings as provided in § 53.1-60 .
  2. If the local department of social services or the Commissioner of Social Services objects to the amount withheld by the Director, the balance credited to the person’s account shall be subject to all civil remedies provided by law to the local department of social services or the Commissioner of Social Services for the enforcement of support of dependents receiving public assistance benefits.
  3. The director of the local department of social services and the Commissioner of Social Services or their designees shall be permitted access to the records of the Director concerning the earnings of the prisoner.

History. Code 1950, § 53-38.01; 1978, c. 660; 1982, c. 636; 2002, c. 747.

Editor’s note.

At the direction of the Virginia Code Commission, “Commissioner of Social Services” was substituted for “Commissioner of the State Department of Social Services” throughout this section to conform to Acts 2016, c. 426.

The 2002 amendments.

The 2002 amendment by c. 747, effective October 1, 2002, substituted “public assistance benefits” for “welfare benefits” in the first sentence in subsection A and at the end of subsection B; and substituted “local department of social services” for “department of welfare or social services for the locality” in the second sentence in subsection A and for “local department of welfare or social services” throughout the rest of the section.

§ 53.1-62. When ineligible for work release.

Any person who is released from confinement for work release employment pursuant to the provisions of § 53.1-60 , who is convicted of a felony included within Chapter 4 (§ 18.2-30 et seq.) of Title 18.2, or arson, burglary or robbery committed while so released, shall, after such conviction, be ineligible for work release employment during the remainder of the sentence or sentences imposed upon him prior to his release for work release employment.

History. Code 1950, § 53-38.1; 1976, c. 210; 1982, c. 636.

CASE NOTES

Editor’s note.

The case annotated below was decided under prior law.

A prisoner has no right to participate in a work-release program. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

There is no right under the general provisions of the Constitution itself for prisoners to participate in furlough and work-release programs. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

Nor any expectation of non-termination. —

A prisoner has no expectation that his participation in a work-release program can be terminated only under certain limited, defined conditions under the State statutory scheme regulating work-release. Durkin v. Taylor, 444 F. Supp. 879, 1977 U.S. Dist. LEXIS 13007 (E.D. Va. 1977).

Article 4. State Facilities for Youthful Offenders.

§ 53.1-63. Department to establish facilities for persons committed under Article 2 (§ 19.2-311 et seq.) of Chapter 18 of Title 19.2

  1. The Department shall establish, staff and maintain, at any state correctional facility designated by the Director, programs and housing for the rehabilitation, training and confinement of persons committed to the Department under the provisions of Article 2 (§ 19.2-311 et seq.) of Chapter 18 of Title 19.2. Persons admitted to these facilities shall be determined by the Department to have the potential for rehabilitation through confinement and treatment therein.
  2. Elements of the program shall include but not be limited to (i) an initial period of military style drill, (ii) cognitive behavioral restructuring designed to teach responsibility and accountability through anger management, life skills development, substance abuse education, parenting skills development and peer tutoring, (iii) developmental counseling as needed, (iv) academic education, career and technical education, and apprenticeships, and (v) transitional release, reentry services, aftercare and intensive parole supervision.

History. Code 1950, § 53-128.1; 1966, c. 482; 1974, cc. 44, 45; 1982, c. 636; 1990, c. 701; 2000, cc. 668, 690; 2001, c. 483; 2020, c. 759.

Editor’s note.

Acts 2000, c. 668, cl. 2 and c. 690, cl. 3, provide: “That the Department of Corrections shall report annually to the General Assembly on or before December 1 on the utilization of the Youthful Offender Program by the Judiciary.”

Acts 2001, c. 483, cl. 2, provides: “That this act shall not be construed to require any local school board to rename its vocational schools or programs or to require any public or private vocational school to change its name; however, any public school having in its name the terms vocational or vocational technical or any variation of these terms and designated by a local school board to be a vocational or vocational technical school shall comply with the relevant requirements for career and technical education set forth in Title 22.1 of the Code of Virginia and the applicable regulations.”

Acts 2001, c. 483, cl. 3, provides: “That nothing contained in this act shall be construed to require expenditure of funds to realign any name with the term ‘career and technical education’ or to require any redesigning or reprinting of any logo, stationery, informational material or website. In addition, any stationery, pamphlets or other printed material referring to vocational education or some other term denoting career and technical education requiring an eventual revision of a state program or name may continue to be used in the normal course of business until consumed before being redesigned and reprinted.”

Acts 2001, c. 483, cl. 4, provides: “That, further, whenever any references are used in the Code of Virginia to vocational education or to vocational technical education or, when used to denote an education program, to vocational rehabilitation or any other state or local program name that clearly relates to career and technical education within its context, such terms shall be deemed to be subsumed by, synonymous with and included in the term ‘career and technical education.’ ”

Acts 2001, c. 483, cl. 5, provides: “That this act shall not be construed to require any additional services or changes in services in any state or local program or to require any such program to deliver different services than are required by applicable law.”

The 2000 amendments.

The 2000 amendments by cc. 688 and 690 are identical, and designated the existing provisions of the section as subsection A and added subsection B.

The 2001 amendments.

The 2001 amendment by c. 483 substituted “career and technical education” for “and vocational training” in subsection B.

The 2020 amendments.

The 2020 amendment by c. 759 substituted “Director” for “Board” in subsection A in the first sentence.

Law Review.

For 2000 survey of Virginia law regarding children, see 34 U. Rich. L. Rev. 939 (2000).

CASE NOTES

Youthful offender program. —

Circuit court properly suspended a juvenile’s five-year incarceration with the Department of Corrections (DOC) on the condition that he successfully complete a special Youthful Offender Program because his plea agreement anticipated that he could be in DOC through use of the language “a blended juvenile and adult sentence,” and the juvenile was no longer eligible to be placed in the Department of Juvenile Justice because of his conduct there. Bardales v. Commonwealth, 71 Va. App. 737, 840 S.E.2d 14, 2020 Va. App. LEXIS 98 (2020).

§ 53.1-63.1. Department to establish facilities for juveniles sentenced as adults.

The Department shall establish, staff and maintain, at any state correctional facilities designated by the Director, programs and housing for the rehabilitation, training, and confinement of juveniles sentenced by the circuit courts as adults and committed to the Department pursuant to § 16.1-272 . The Department shall establish, staff, and maintain education for such juveniles in accordance with standards established by the Department of Juvenile Justice.

History. 1996, cc. 755, 914; 2012, cc. 803, 835; 2020, c. 759.

Editor’s note.

Acts 1996, cc. 755 and 914, cls. 7, provide: “[t]hat the provisions of this act shall apply to offenses committed and to records created and proceedings held with respect to those offenses on or after July 1, 1996.”

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 99, are identical, and rewrote the last sentence, which formerly read: “The Department of Correctional Education shall establish, staff, and maintain education for such juveniles in accordance with Chapter 18 (§ 22.1-339 et seq.) of Title 22.1.”

The 2020 amendments.

The 2020 amendment by c. 759 substituted “Director” for “Board” in the first sentence.

§ 53.1-64. Programs and facilities.

The Department shall establish and maintain within each facility programs for counseling and education, including career and technical education; buildings sufficient to ensure the secure confinement of persons admitted to the facility; and programs in at least one such facility for the study, testing and diagnosis of the following persons:

  1. Persons committed to the Department for diagnosis and evaluation under the provisions of § 19.2-316 for a determination as to the likelihood of their benefitting from the program of such facility; and
  2. Persons confined in the state corrections system under the indeterminate period of commitment authorized by Article 2 (§ 19.2-311 et seq.) of Chapter 18 of Title 19.2, to evaluate their progress periodically and to determine their readiness for release.

History. Code 1950, § 53-128.2; 1966, c. 482; 1982, c. 636; 1990, c. 701; 2001, c. 483.

Editor’s note.

Acts 2001, c. 483, cl. 2, provides: “That this act shall not be construed to require any local school board to rename its vocational schools or programs or to require any public or private vocational school to change its name; however, any public school having in its name the terms vocational or vocational technical or any variation of these terms and designated by a local school board to be a vocational or vocational technical school shall comply with the relevant requirements for career and technical education set forth in Title 22.1 of the Code of Virginia and the applicable regulations.”

Acts 2001, c. 483, cl. 3, provides: “That nothing contained in this act shall be construed to require expenditure of funds to realign any name with the term ‘career and technical education’ or to require any redesigning or reprinting of any logo, stationery, informational material or website. In addition, any stationery, pamphlets or other printed material referring to vocational education or some other term denoting career and technical education requiring an eventual revision of a state program or name may continue to be used in the normal course of business until consumed before being redesigned and reprinted.”

Acts 2001, c. 483, cl. 4, provides: “That, further, whenever any references are used in the Code of Virginia to vocational education or to vocational technical education or, when used to denote an education program, to vocational rehabilitation or any other state or local program name that clearly relates to career and technical education within its context, such terms shall be deemed to be subsumed by, synonymous with and included in the term ‘career and technical education.’ ”

Acts 2001, c. 483, cl. 5, provides: “That this act shall not be construed to require any additional services or changes in services in any state or local program or to require any such program to deliver different services than are required by applicable law.”

The 2001 amendments.

The 2001 amendment by c. 483 substituted “and education, including career and technical education” for “education and vocational training” in the introductory language; and inserted “Article 2 (§ 19.2-311 et seq.) of Chapter 18 of Title 19.2” in subdivision 2.

§ 53.1-65. Consideration of report developed at diagnostic facilities.

The Department shall give careful consideration to the report developed at the diagnostic facilities established under § 53.1-64 in determining whether persons committed to it under the provisions of § 19.2-311 et seq., are to be confined at a youthful offender facility or elsewhere in the state corrections system.

History. Code 1950, § 53-128.3; 1966, c. 482; 1982, c. 636.

§ 53.1-66. Transfer of prisoners to other facilities.

Any person confined by the Department in a facility established by this chapter may be transferred from such facility to other facilities in the state corrections system for the remainder of the period of commitment under § 16.1-272 or Article 2 (§ 19.2-311 et seq.) of Chapter 18 of Title 19.2, upon a written finding by the Department submitted to the sentencing court that the person has exhibited intractable behavior or, in the case of persons committed under § 19.2-311 , otherwise becomes ineligible to use such facilities pursuant to § 19.2-311.

“Intractable behavior” means behavior which (i) indicates an inmate’s unwillingness or inability to conform his behavior to that necessary to his successful completion of the program or (ii) is so disruptive as to threaten the successful completion of the program by other participants.

History. Code 1950, § 53-128.4; 1966, c. 482; 1982, c. 636; 1990, c. 701; 1996, cc. 755, 914.

Editor’s note.

Acts 1996, cc. 755 and 914, cls. 7, provide: “[t]hat the provisions of this act shall apply to offenses committed and to records created and proceedings held with respect to those offenses on or after July 1, 1996.”

The 1996 amendments.

The 1996 amendments by cc. 755 and 914 are identical, and in the first paragraph, inserted “§ 16.1-272 or Article 2” following “the period of commitment under,” inserted “of Chapter 18 of Title 19.2” following “(§ 19.2-311 et seq.)” and inserted “in the case of persons committed under § 19.2-311 ” following “the person has exhibited intractable behavior or.”

§ 53.1-67. Admission to facility; good conduct allowance restricted.

In no case shall a person previously confined in a youthful offender facility, whether for a different or the same offense, be confined again in such a facility, except for the purposes of study, testing and diagnosis.

The provisions of §§ 53.1-191 , 53.1-196 , and 53.1-198 through 53.1-201 relating to good conduct credits and allowances and extraordinary service and the provisions of § 53.1-187 relating to credit for time served in a correctional facility or juvenile detention facility shall not apply to persons sentenced to an indeterminate sentence under § 19.2-311 for a crime committed on or after July 1, 1983. Acts performed by such persons which would earn credit for them under § 53.1-191 , if it were applicable, shall be noted on their record by the authorities of the facility.

History. Code 1950, § 53-128.5; 1966, c. 482; 1982, c. 636; 1983, c. 606; 1984, c. 313; 1990, c. 701.

Article 5. Boot Camp Incarceration Program.

§ 53.1-67.1. Repealed by Acts 2019, c. 618, cl. 2.

Cross references.

For current provisions as to establishment of community corrections alternative program and supervision upon completion, see § 53.1-67.9 .

Editor’s note.

Acts 1995, c. 117, cl. 2, repealed Acts 1990, c. 474, cl. 2, which provided that this article would expire on December 31, 1995.

Former Article 5 (§ 53.1-67.7 ), relating to establishment of Boot Camp Incarceration Program; supervision upon completion; report, derived from 1990, c. 474; 1994, c. 926; 1995, c. 117; 1996, cc. 809, 938; 2001, c. 483.

Article 6. Statewide Community-Based Corrections System for State-Responsible Offenders.

§ 53.1-67.2. Purpose.

The purposes of this article are to (i) provide effective protection of society and (ii) provide efficient and economical correctional services by establishing and maintaining appropriate sanction alternatives and by assisting state-responsible offenders who are incarcerated in returning to society as productive citizens, with the goal of reducing the incidence of repeat offenders.

History. 1994, 2nd Sp. Sess., cc. 1, 2.

Editor’s note.

Acts 1994, 2nd Sp. Sess., cc. 1 and 2, cl. 3 provides in pertinent part: “[T]he Department of Criminal Justice Services and the Department of Corrections may proceed with the development of such standards for the development, implementation, operation and evaluation of [this article] as may be necessary.”

§ 53.1-67.3. Establishment of system.

The Director shall establish a statewide community-based system of programs, services and residential and nonresidential facilities for (i) those state-responsible offenders convicted of felonies and sentenced to alternative forms of punishment and (ii) those state-responsible offenders who the Director has determined, after a period of incarceration in a state or local correctional facility, require less secure confinement or a lower level of supervision. Facilities established pursuant to this article may be partially or completely physically restrictive with varying levels and types of offender control.

History. 1994, 2nd Sp. Sess., cc. 1, 2.

Editor’s note.

Acts 1994, 2nd Sp. Sess., cc. 1 and 2, cl. 6 provides: “That it is not the intent of this act to mandate local funding of any programs created under this act.”

§ 53.1-67.4. Authority of Director; purchase of services authorized; location and notification.

  1. Facilities established under this article may, in the discretion of the Director, be purchased, constructed or leased. The Director is further authorized to employ necessary personnel for these facilities. The Director may purchase such services as are deemed necessary in furtherance of this article. Such services may be provided by qualified public agencies or private agencies.
  2. At least 90 days prior to (i) the issuance of a request for proposal for construction, (ii) the execution of a contract for the purchase of improved or unimproved land, or (iii) the execution or renewal of a lease agreement, notice shall be given by the Director to the chairman of the board of supervisors or mayor of the county, city, or town in which the facility is to be located. Such notice shall also be given to each adjacent land owner. In addition, if the local governing body in the jurisdiction where the facility is to be located so requests, the Department shall hold a public hearing in that jurisdiction.

History. 1994, 2nd Sp. Sess., cc. 1, 2; 1995, cc. 502, 574; 2006, c. 187; 2020, c. 759.

The 2006 amendments.

The 2006 amendment by c. 187 inserted the A designation at the beginning of the first paragraph and added subsection B.

The 2020 amendments.

The 2020 amendment by c. 759 deleted “pursuant to rules and regulations of the Board” preceding “may purchase” in the next-to-last sentence of subsection A.

§ 53.1-67.5. Director to prescribe standards.

The Director shall prescribe standards for the development, implementation, operation, and evaluation of programs, services and facilities authorized by this article. The Director shall also prescribe guidelines for the transfer of offenders from a state or local correctional facility who the Director has determined should be placed in programs or facilities authorized under this article.

History. 1994, 2nd Sp. Sess., cc. 1, 2; 2020, c. 759.

The 2020 amendments.

The 2020 amendment by c. 759 substituted “Director shall” for “Board shall” both times it appears.

§ 53.1-67.6. Minimum programs.

The Statewide Community-Based Corrections System shall include, but not be limited to, the following programs, services and facilities: regular and intensive probation supervision, regular and intensive parole supervision for those state-responsible offenders sentenced for an offense committed prior to January 1, 1995, home/electronic incarceration, community corrections alternative programs, work release, pre-release centers, probation-violator and parole-violator centers, halfway houses and, for selected offenders, drug testing and treatment. The programs, facilities, and services required under this article shall be made available to each judicial circuit, but the manner in which such are provided shall be determined by the Director. Additional programs, services, and facilities may be established by the Director.

History. 1994, 2nd Sp. Sess., cc. 1, 2; 2019, c. 618.

Editor’s note.

Acts 1994, 2nd Sp. Sess., cc. 1 and 2, cl. 6 provides: “That it is not the intent of this act to mandate local funding of any programs created under this act.”

The 2019 amendments.

The 2019 amendment by c. 618 substituted “community corrections alternative programs” for “diversion center incarceration, boot camp incarceration, detention center incarceration”; and substituted “Director” for “Board” twice.

Article 7. Diversion Center Incarceration Program.

§ 53.1-67.7. Repealed by Acts 2019, c. 618, cl. 2.

Cross references.

For current provisions as to establishment of community corrections alternative program and supervision upon completion, see § 53.1-67.9 .

Editor’s note.

Former Article 7 (§ 53.1-67.7 ), relating to establishment of Diversion Center Incarceration Program, derived from 1994, 2nd Sp. Sess., cc. 1, 2; 2000, c. 338.

Article 8. Detention Center Incarceration Program.

§ 53.1-67.8. Repealed by Acts 2019, c. 618, cl. 2.

Cross references.

For current provisions as to establishment of community corrections alternative program and supervision upon completion, see § 53.1-67.9 .

Editor’s note.

Former Article 8 (§ 53.1-67.8 ), relating to establishment of Detention Center Incarceration Program, derived from 1994, 2nd Sp. Sess., cc. 1, 2.

Article 9. Community Corrections Alternative Program.

§ 53.1-67.9. Establishment of community corrections alternative program; supervision upon completion.

The Department is authorized to establish and maintain a system of residential community corrections alternative facilities for probationers and parolees whose identified risks and needs cannot be addressed by conventional probation or parole supervision and who are committed to the Department under § 19.2-316.4 . The program shall include components for providing access to counseling, substance abuse testing and treatment, remedial education, and career and occupational assessment; providing assistance in securing and maintaining employment; ensuring compliance with terms and conditions of probation or parole; ensuring restitution and performance of community service; payment of fines, if any, and costs of court; and providing other programs that will assist the probationer or parolee in returning to society as a productive citizen. The Department shall perform risk and needs assessments to establish a case plan for each probationer or parolee determining the appropriate program components and program duration for that probationer or parolee.

Upon completion of the program, the probationer or parolee shall be released from confinement and remain on probation or parole for a period of one year or for such other longer period as may be specified by the sentencing court or Parole Board. As a condition of such probation or parole following the community corrections alternative component, a probationer’s or parolee’s successful participation in employment, career and technical education, or other educational or treatment programs may be required.

Probation officers assigned to the program shall be authorized by the judges of the circuit court of the county or city in which the position is assigned. Any officer so appointed shall have the same powers and duties as specified in § 53.1-145 , and such appointment shall be valid in any judicial circuit in the Commonwealth.

History. 2019, c. 618.

CASE NOTES

Intermediate scrutiny test must be applied to pilot boot camp incarceration program where the program only admitted male applicants. West v. Virginia Dep't of Cors., 847 F. Supp. 402, 1994 U.S. Dist. LEXIS 8538 (W.D. Va. 1994).

Ineligibility determination upheld. —

Considering schizophrenic defendant’s previous probation violations and her unsuitability for alternative programs, revocation of probation and imposition of remaining sentence upon the Department of Corrections’ determination that defendant was ineligible for detention center program did not constitute an abuse of discretion, despite defendant’s contention that by doing so the trial court violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Wilson v. Commonwealth, 31 Va. App. 200, 522 S.E.2d 385, 1999 Va. App. LEXIS 689 (1999).

Boot camp violated equal protection clause. —

Even if there were differences which justified treating male and female inmates differently, there was no compelling interest in providing male and female offenders with such unequal sentencing options where male offenders were allowed to be in a boot camp incarceration program; department of corrections did not even attempt to address what “acknowledged differences” would justify the provision of a boot camp program and favorable sentencing alternatives only to men, defendants were acting on the basis of archaic and stereotypic notions of the roles of men and women, and there was an inherent contradiction in the defendant’s argument where on the one hand, defendants argue that the “acknowledged differences” between men and women justify the provision of a trial boot camp program for male inmates and on the other hand, defendants purport to want to use the results of the all-male boot camp incarceration program to determine whether the program should be extended to women. West v. Virginia Dep't of Cors., 847 F. Supp. 402, 1994 U.S. Dist. LEXIS 8538 (W.D. Va. 1994).

Chapter 3. Local Correctional Facilities.

Article 1. Establishment and Regulation of Facilities.

§ 53.1-68. Minimum standards for local correctional facilities and lock-ups; health inspections, behavioral health services inspections, and personnel.

  1. The Board shall establish minimum standards for the construction, equipment, administration, and operation of local correctional facilities, whether heretofore or hereafter established. However, no minimum standard shall be established that includes square footage requirements in excess of accepted national standards. The Board or its agents shall conduct at least one unannounced inspection of each local facility annually. However, in those years in which a certification audit of a facility is performed and the facility is in compliance with all the standards, the Board may elect to suspend the unannounced inspection based upon that certification audit and the history of compliance of the facility with the standards promulgated in accordance with this section, except in any year in which there is a change in the administration of a local or regional jail. The Board shall also establish minimum standards for the construction, equipment, and operation of lock-ups, whether heretofore or hereafter established. However, no minimum standard shall be established that includes square footage requirements in excess of accepted national standards.
  2. Standards concerning sanitation in local correctional facilities and procedures for enforcing these standards shall be promulgated by the Board with the advice and guidance of the State Health Commissioner. The Board, in conjunction with the Board of Health, shall establish a procedure for the conduct of at least one unannounced annual health inspection by the State Health Commissioner or his agents of each local correctional facility. The Board and the State Health Commissioner may authorize such other announced or unannounced inspections as they consider appropriate.
  3. The Board shall establish minimum standards for behavioral health services in local correctional facilities and procedures for enforcing such minimum standards, with the advice of and guidance from the Commissioner of Behavioral Health and Developmental Services and the State Inspector General.Such standards shall include:
    1. Requirements for behavioral health services provided in jails, including requirements for (i) behavioral health screening of individuals committed to local correctional facilities; (ii) referral of individuals committed to local correctional facilities for whom a behavioral health screening indicates reason to believe the person may have mental illness to a behavioral health service provider for a behavioral health assessment; and (iii) the provision of behavioral health services in local correctional facilities, as well as regulations directing the sharing of medical and mental health information and records in accordance with § 53.1-133.03 . Requirements related to behavioral health screenings and assessments shall include a requirement that in cases in which there is reason to believe an individual is experiencing acute mental health distress or is at risk for suicide, (a) staff of the local correctional facility shall consult with the behavioral health service provider to implement immediate interventions and shall provide ongoing monitoring to ensure the safety of the individual and (b) the behavioral health assessment shall be completed within 72 hours of completion of the behavioral health screening, except that if the 72-hour period ends on a day that is a Saturday, Sunday, or legal holiday, the assessment shall be completed by the close of business on the next day that is not a Saturday, Sunday, or legal holiday;
    2. Requirements for discharge planning for individuals with serious mental illness assessed as requiring behavioral health services upon release from the local correctional facility, which shall include (i) creation of a discharge plan, as soon as practicable after completion of the assessment required pursuant to subdivision 1, and (ii) coordination of services and care with community providers, community supervision agencies, and, as appropriate, the individual’s family in accordance with the discharge plan until such time as the individual has begun to receive services in accordance with the discharge plan or for a period of 30 days following release from the local correctional facility, whichever occurs sooner. Discharge plans shall ensure access to the full continuum of care for the individual upon release from the local correctional facility and shall include provisions for (a) linking the individual for whom the discharge plan has been prepared to the community services board in the jurisdiction in which he will reside following release and to other supports and services necessary to meet his service needs and (b) communication of information regarding the individual’s treatment needs and exchange of treatment records among service providers;
    3. A requirement for at least one unannounced annual inspection of each local correctional facility by the Board or its agents to determine compliance with the standards for behavioral health services established pursuant to this subsection and such other announced or unannounced inspections as the Board may deem necessary to ensure compliance with the standards for behavioral health services established pursuant to this subsection; and
    4. Provisions for the billing of the sheriff in charge of a local correctional facility or superintendent of a regional correctional facility by and payment by such sheriff or superintendent to a community services board that provides behavioral health services in the local correctional facility, in accordance with § 53.1-126 .
  4. The Department of Criminal Justice Services, in accordance with § 9.1-102 , shall establish minimum training standards for persons designated to provide courthouse and courtroom security pursuant to the provisions of § 53.1-120 and for persons employed as jail officers or custodial officers under the provisions of this title. The sheriff shall establish minimum performance standards and management practices to govern the employees for whom the sheriff is responsible.
  5. The superintendent of a regional jail or jail farm shall establish minimum performance standards and management practices to govern the employees for whom the superintendent is responsible.

History. Code 1950, § 53-133; 1982, c. 636; 1991, c. 383; 1992, c. 179; 1994, c. 861; 1995, c. 797; 1997, c. 644; 2000, c. 256; 2019, c. 827; 2021, Sp. Sess. I, c. 179.

Cross references.

As to the Virginia Indoor Clean Air Act, see Chapter 28.2 (§ 15.2-2820 et seq.) of Title 15.2.

Editor’s note.

Acts 2019, c. 827, cl. 2 provides: “That the provisions of subdivision C 2 of § 53.1-68 of the Code of Virginia, as amended by this act, relating to requirements for discharge planning for individuals committed to local correctional facilities shall become effective on July 1, 2020.”

Acts 2019, c. 827, cl. 3 provides: “That the Chairman of the Board of Corrections shall convene a work group to include representatives of sheriffs, superintendents of regional correctional facilities, community services boards, the Department of Behavioral Health and Developmental Services, the Department of Medical Assistance Services, the Virginia Association of Counties, the Virginia Municipal League, and such other stakeholders as the Director shall deem appropriate to determine the cost of implementing provisions of this act. The work group shall report its findings and conclusions to the Governor and the Chairmen of the House Committee on Appropriations, the House Committee for Courts of Justice, the House Committee on Health, Welfare and Institutions, the Senate Committee on Finance, the Senate Committee for Courts of Justice, the Senate Committee on Education and Health, and the Senate Committee on Rehabilitation and Social Services by November 1, 2019.”

Acts 2021, Sp. Sess. I, c. 179, cl. 2 provides: “That Board of Local and Regional Jails shall review the behavioral health screening and assessment process for individuals committed to local correctional facilities to (i) identify barriers to ensuring that all behavioral health assessments are completed within 72 hours of completion of the behavioral health screening and (ii) develop recommendations for addressing those barriers to ensure that all behavioral health assessments are completed within 72 hours of completion of the behavioral health screening in local correctional facilities. The Board shall report its findings and recommendations to the Secretary of Public Safety and Homeland Security and the Chairmen of the House Committees on Health, Welfare and Institutions and Public Safety and the Senate Committee on Rehabilitation and Social Services by October 1, 2021.”

The 1997 amendment added the present third sentence in subsection A.

The 2000 amendments.

The 2000 amendment by c. 256, in subsection A, inserted the second and last sentences.

The 2019 amendments.

The 2019 amendment by c. 827 added subsection C; and redesignated former subsections C and D as D and E, respectively. For effective date of subdivision C 2, see Editor’s note.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 179, effective July 1, 2021, in subdivision C 1, inserted the clause (i) designation and deleted “and assessment” following “health screening” therein, inserted clause (ii), and inserted the clause (iii) designation in the first sentence and added the second sentence.

Law Review.

For note on prison overcrowding as cruel and unusual punishment, see 16 U. Rich. L. Rev. 621 (1982).

Michie’s Jurisprudence.

For related discussion, see 14B M.J. Prisons and Prisoners, §§ 3, 4.

CASE NOTES

Compliance with regulations in holding long-term felons. —

The Virginia Department of Corrections has sufficient authority to compel local jails to comply with its substantive regulations in holding long-term felons. Hill v. Hutto, 537 F. Supp. 1185, 1982 U.S. Dist. LEXIS 12085 (E.D. Va. 1982) (decided under prior law).

Municipal liability. —

A municipality may not be held liable under 42 U.S.C. § 1983 for alleged constitutional violations at a local detention facility, since the municipality has no control over the internal administration of such a facility; under this section, the State Board of Corrections tells the sheriff what he has to do in running the jail and the State Department of Criminal Justice Services tells the sheriff what he must do to train his employees. Grayson v. Peed, 195 F.3d 692, 1999 U.S. App. LEXIS 29254 (4th Cir. 1999), cert. denied, 529 U.S. 1067, 120 S. Ct. 1673, 146 L. Ed. 2d 482, 2000 U.S. LEXIS 2597 (2000).

OPINIONS OF THE ATTORNEY GENERAL

Inmate telephone commissions. —

Virginia law does not require that funds generated from inmate telephone commissions that are received by the treasurer and deposited into the city’s funds to be reallocated back to the sheriff’s office to be used within the facility for the benefit of the inmates. The sheriffs office may not establish and maintain a separate fund for such commissions. Regardless of the account into which the treasurer initially deposits the funds, they remain allocable to city. See opinion of Attorney General to The Honorable Vanessa R. Crawford, Sheriff, City of Petersburg, 12-068, 2012 Va. AG LEXIS 39 (10/5/2012).

§ 53.1-69. Board may prohibit confinement and require transfer of prisoners in substandard facilities.

The Board is authorized to limit, by its order, the confinement of prisoners in any local correctional facility or lock-up, which is not constructed, equipped, maintained and operated so as to comply with minimum standards prescribed by the Board, either by prohibiting confinement of any prisoners in such local correctional facility or lock-up, or by limiting the maximum number of prisoners to be confined therein, as the Board deems appropriate. The Board may designate some other local correctional facility or lock-up in or at which shall be confined persons who otherwise would have been confined in the facility subject to the Board’s order. Copies of each order shall, upon being issued, be sent to the officer in charge of the facilities affected, to the governing bodies of the counties, cities and towns affected and to the judge of the circuit court of each county and city in which are located the local correctional facilities or lock-ups affected.

History. Code 1950, § 53-134; 1981, c. 487; 1982, c. 636.

Law Review.

For note on prison overcrowding as cruel and unusual punishment, see 16 U. Rich. L. Rev. 621 (1982).

§ 53.1-69.1. Review of death of inmates in local correctional facilities.

  1. The Board shall have the power to review the death of any inmate who was incarcerated in a local correctional facility at the time of his death in order to determine (i) the circumstances surrounding the inmate’s death, including identifying any act or omission by the facility or any employee or agent thereof that may have directly or indirectly contributed to the inmate’s death, and (ii) whether the facility was in compliance with the regulations promulgated by the Board.
  2. Any review conducted pursuant to this section shall be conducted in accordance with the policies and procedures for such review developed and implemented by the Board in accordance with subdivision 5 of § 53.1-5 . In conducting a review pursuant to this section, the Board may exercise its power under § 53.1-6 to hold and conduct hearings, issue subpoenas, and administer oaths and take testimony thereunder. If the Board determines that it cannot adequately conduct any particular review pursuant to this section because of the conduct by the Board of another ongoing review, the Board may request that the Department assist in the conduct of such review. Department staff conducting a review pursuant to this section shall be considered agents of the Board.
  3. If the Board determines during the conduct of any review pursuant to this section that it is necessary to review the operation of an entity other than the local correctional facility in order to complete the review, the Board shall request that the Office of the State Inspector General review the operation of such entity if such entity falls within the authority vested in the Office of the State Inspector General pursuant to Chapter 3.2 (§ 2.2-307 et seq.) of Title 2.2. Nothing in this section shall limit the authority of the Office of the State Inspector General to exercise any of the powers and duties set forth in Chapter 3.2 (§ 2.2-307 et seq.) of Title 2.2.
  4. Upon completion of any review conducted pursuant to this section, the Board shall prepare a detailed report of the findings of any review, which shall be submitted to the Governor, the Speaker of the House of Delegates, and the President pro tempore of the Senate. Such report may contain recommendations for changes to the minimum standards for the construction, equipment, administration, and operation of local correctional facilities in order to prevent problems, abuses, and deficiencies in and improve the effectiveness of such facilities. In addition, the Board may issue any order authorized under § 53.1-69 to correct any failure by the facility to comply with the Board’s regulations. Except as otherwise required by law, the Board shall maintain the confidentiality of any confidential records or information obtained from a facility during the course of a review in accordance with state and federal law.
  5. The Board shall publish an annual report summarizing the reviews conducted by the Board within that year. Such report shall include any trends or similarities among the deaths of inmates in local correctional facilities and present recommendations on policy changes to reduce the number of deaths in local correctional facilities. The Board shall publish such report on its website and submit the report to the Governor, the Chairmen of the Senate Committee on Rehabilitation and Social Services and the House Committee on Public Safety, the Chair of the House Committee for Courts of Justice, the Speaker of the House of Delegates, and the President pro tempore of the Senate.

History. 2017, c. 759; 2020, c. 1287.

The 2020 amendments.

The 2020 amendment by c. 1287 added subsection E.

§ 53.1-69.2. Administrative appeal of Board determinations.

If the Board determines that a local correctional facility is not in compliance with the minimum standards for construction, equipment, administration, or operation of local correctional facilities, the Board shall provide written notice of such determination to the local correctional facility. The local correctional facility may appeal the Board’s determination. Any local correctional facility that appeals such a determination by the Board shall provide written notice of its request for an appeal to the Board within 30 days of the date upon which the facility received written notice of the Board’s determination of noncompliance. Such appeal shall be conducted in accordance with Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.).

History. 2020, c. 759.

§ 53.1-70. Jurisdiction of court to enforce orders of Board; proceedings.

Any circuit court in any county or city which maintains and operates any local correctional facility or lock-up, or in any county in which is situated any town which maintains and operates any local correctional facility or lock-up, affected by any such order of the Board, shall have jurisdiction to enforce such order by an injunction or other appropriate remedy at the suit of the Board. In the City of Richmond such jurisdiction shall be vested in the Circuit Court, Division I. Such proceeding shall be commenced by a petition of the Board in the name of the Commonwealth and shall, insofar as possible, conform to rules of procedure applicable to a civil action. The governing body of each county, city or town which maintains and operates any local correctional facility or lock-up affected by the order of the Board, and the officer in charge of each such facility, shall be made parties defendant. In every such proceeding the court shall hear all relevant evidence, including evidence with regard to the condition of the local correctional facility or lock-up and any other evidence bearing upon the propriety of the Board’s action. The court may refuse to grant the injunction if it appears that the action of the Board was not warranted.

History. Code 1950, § 53-135; 1982, c. 636; 2005, c. 681.

The 2005 amendments.

The 2005 amendment by c. 681, effective January 1, 2006, substituted “a civil action” for “chancery practice” in the third sentence.

§ 53.1-70.1. Transport of prisoners; authority.

  1. The sheriff or administrator in charge of a local or regional correctional facility where a prisoner is incarcerated and employees of such facility acting on the direction of such sheriff or administrator shall have the authority to transport the prisoner to another jurisdiction inside the Commonwealth for any lawful purpose and to retain authority over such prisoner.
  2. Any person authorized to transport a prisoner under subsection A who has the need to travel with a prisoner through or to another state is authorized to travel through or to such state and retain authority over such prisoner as allowed by such state.

History. 2016, c. 579.

§ 53.1-71. Courts to order jails erected and repaired.

When it shall appear to the circuit court of any county or city that there is no jail therein or that the jail of such county or city is insecure, out of repair or otherwise inadequate, it shall be the duty of such court to award a rule in the name of the Commonwealth against the governing body of the county or city to show cause why a writ of mandamus should not issue commanding the governing body to erect a jail for the county or city, or to cause the existing jail of such county or city to be made secure, put in good repair, or rendered otherwise adequate, as the case may be.

History. Code 1950, § 53-129; 1982, c. 636.

CASE NOTES

Jurisdiction under this section is to be exercised by mandamus, and not by a bill in equity. Manly Mfg. Co. v. Broaddus, 94 Va. 547 , 27 S.E. 438 , 1897 Va. LEXIS 106 (1897) (decided under prior law).

Article 1.1. Private Operation of Regional Jail Facilities.

§ 53.1-71.1. Private construction, operation, etc., of regional jail facility.

  1. Any regional jail authority constituted pursuant to Article 3.1 (§ 53.1-95.2 et seq.) or 5 (§ 53.1-105 et seq.) of Chapter 3 of Title 53.1 may contract with a private entity for the financing, site selection, acquisition, construction, maintenance, leasing, management, or operation of a regional jail facility.
  2. Any project authorized pursuant to subsection A of this section shall be subject to the requirements and limitations set out below:
    1. Contracts entered into under the terms of this article shall be with an entity submitting an acceptable response pursuant to a request for proposals. An acceptable response shall be one which meets all the requirements in the request for proposals. However, no contract for correctional services may be entered into unless the private contractor demonstrates that it has:
      1. The qualifications, experience and management personnel necessary to carry out the terms of this contract;
      2. The financial resources to provide indemnification for liability arising from jail management projects;
      3. Evidence of past performance of similar contracts; and
      4. The ability to comply with all applicable federal and state constitutional standards; federal, state, and local laws; court orders; and correctional standards.
    2. Contracts awarded under the provisions of this article, including contracts for the provision of correctional services or for the lease or use of public lands or buildings for use in the operation of facilities, may be entered into for a period of up to thirty years, subject to the requirements for expenditure of funds by the local governing bodies.
    3. No contract for correctional services shall be entered into which would adversely affect the tax-exempt status of obligations issued or to be issued to finance the facility, and unless the following requirements are met:
      1. The contractor provides audited financial statements for the previous five years or for each of the years the contractor has been in operation, if fewer than five years, and provides other financial information as requested; and
      2. The contractor provides an adequate plan of indemnification, specifically including indemnity for civil rights claims. The indemnification plan shall be adequate to protect the combination of counties or cities and public officials from all claims and losses incurred as a result of the contract. The indemnification plan shall include liability insurance in limits of not less than five million dollars. Nothing herein is intended to deprive a regional jail facility contractor or the combination of counties or cities of the benefits of any law limiting exposure to liability or setting a limit on damages.
    4. No contract for correctional services shall be executed unless:
      1. The proposed contract has been reviewed and approved by the Board;
      2. An appropriation for the services to be provided under the contract has been expressly approved as is otherwise provided by law;
      3. The correctional services proposed by the contract are of at least the same quality as those routinely provided by a regional jail facility to similar types of inmates; and
      4. An evaluation of the proposed contract demonstrates a cost benefit to the combination of counties or cities when compared to alternative means of providing the services through governmental agencies.

History. 1994, c. 715.

§ 53.1-71.2. Authority of security employees.

Security employees of a regional jail facility contractor shall be allowed to use force and shall exercise their powers and authority only while on the grounds of a regional jail facility under the supervision of the regional jail facility contractor, while transporting inmates, and while pursuing escapees from such facilities until such time that the pursuit of the escapees is assumed by state or local law-enforcement agencies. All provisions of law pertaining to custodians of inmates or jail guards or officers shall apply to contractors’ security employees.

History. 1994, c. 715.

§ 53.1-71.3. Application of certain criminal laws to contractor-operated facilities.

All provisions of law establishing penalties for offenses committed against custodians of inmates or jail guards or officers shall apply mutatis mutandis to offenses committed by or with regard to inmates assigned to facilities or programs for which a regional jail facility contractor is providing correctional services.

History. 1994, c. 715.

§ 53.1-71.4. Powers and duties not delegable to contractor.

The regional jail authority issuing the contract shall retain the authority and responsibility for the rules and procedures as they apply to the treatment of prisoners, and no contract for correctional services shall authorize, allow, or imply a delegation of authority or responsibility to a regional jail facility contractor for any of the following:

  1. Developing and implementing procedures for calculating inmate release dates;
  2. Developing and implementing procedures for calculating and awarding sentence credits;
  3. Approving inmates for furlough and work release;
  4. Approving the type of work inmates may perform and the wages or sentence credits which may be given the inmates engaging in such work;
  5. Granting, denying, or revoking sentence credits;
  6. Classifying inmates or placing inmates in less restrictive custody or more restrictive custody;
  7. Transferring an inmate; however, the contractor may make written recommendations regarding the transfer of an inmate or inmates;
  8. Formulating rules of inmate behavior, violations of which may subject inmates to sanctions; however, the contractor may propose such rules for review and adoption, rejection, or modification as otherwise provided by law or regulation; and
  9. Disciplining inmates in any manner which requires a discretionary application of rules of inmate behavior or a discretionary imposition of a sanction for violations of such rules.

History. 1994, c. 715.

§ 53.1-71.5. Board to promulgate regulations.

The Board shall make, adopt and promulgate regulations governing the following aspects of private management and operation of regional jail facilities:

  1. Minimum standards for the construction, equipment, administration and operation of the facilities; however, the standards shall be at least as stringent as those established for local correctional facilities;
  2. Contingency plans for operation of a contractor-operated facility in the event of a termination of the contract;
  3. Use of deadly and nondeadly force by regional jail facility contractors’ security personnel;
  4. Methods of monitoring a contractor-operated facility by an appropriate state or local governmental entity or entities;
  5. Public access to a contractor-operated facility; and
  6. Such other regulations as may be necessary to carry out the provisions of this article.

History. 1994, c. 715.

§ 53.1-71.6. State reimbursement to localities.

  1. Reimbursement to participating localities for the cost of construction shall be made pursuant to Article 3 (§ 53.1-80 et seq.) of Chapter 3 of Title 53.1.
  2. The manner of state payment to the localities for the care and custody costs at the facility of persons accused or convicted of any offense against the laws of the Commonwealth shall be as provided in the general appropriation act. Such payments shall include only the reasonable costs of guarding and providing necessary housing, maintenance, administrative expenses, food, clothing, medicine and medical attention for such prisoners. However, in no event shall the payment to the localities, when calculated on a per diem per prisoner basis, exceed the total cost ordinarily paid by the Commonwealth to a locality for prisoner care and custody expenses, when calculated on a per diem per prisoner basis.

History. 1994, c. 715.

Article 2. Utilization of Jails.

§ 53.1-72. Jails of counties and cities to be jails of courts therein.

The jail of each county and city shall be the jail of every court established therein by law.

History. Code 1950, § 53-137; 1982, c. 636.

§ 53.1-73. When jail of county to be jail for town.

Every town shall have the use of the jail of the county in which such town is located, to aid the constituted authorities of any such town in maintaining peace and good order, and generally for the enforcement of its ordinances, unless for good cause the judge of the circuit court of such county shall prohibit such use.

History. Code 1950, § 53-138; 1972, c. 573; 1982, c. 636.

CASE NOTES

Towns not obliged to build jails. —

Towns are authorized to build their own jails by former § 15.1-14, but they are not obliged to do so, and may use the county jail as provided by this section. Franklin v. Town of Richlands, 161 Va. 156 , 170 S.E. 718 , 1933 Va. LEXIS 307 (1933) (decided under prior law).

Governmental immunity of a municipal corporation from liability for injury to a prisoner caused by the negligent manner in which its jail is maintained is not destroyed by the fact that under this section and former § 15.1-14 a town is not obliged to maintain its own jail, but may use the county jail. Franklin v. Town of Richlands, 161 Va. 156 , 170 S.E. 718 , 1933 Va. LEXIS 307 (1933) (decided under prior law) (discussing and refusing to follow Edwards v. Town of Pocahontas, 1891 U.S. App. LEXIS 1424, 47 F. 268 (W.D. Va. 1891)).

§ 53.1-74. When court may adopt jail of another county or city.

When a county or city is without an adequate jail, or its jail is to be removed, rebuilt or repaired, the circuit court thereof shall adopt as its jail the jail of another county or city until it can obtain an adequate jail. All persons committed or ordered committed to the jail of the first mentioned county or city, at or after such adoption and before an adequate jail be so obtained, shall be conveyed to the jail so adopted.

History. Code 1950, § 53-139; 1982, c. 636.

Research References.

Virginia Forms (Matthew Bender). No. 9-1203 Motion to Transfer for Safety.

§ 53.1-75. Procedure after adoption.

The keeper of any jail so adopted for a county or city so designated shall, as to the person so conveyed to such jail, be deemed the jailer of such county or city, until the court thereof shall declare its own jail to be adequate. Thereafter, such persons shall be delivered to the sheriff of such county or city who shall convey them to the jail kept by the sheriff or jail superintendent.

History. Code 1950, § 53-141; 1982, c. 636; 1991, c. 383.

§ 53.1-76. Commitment to jail of another county or city; payment of costs, etc.

In any case should it become necessary or expedient for the safekeeping of any prisoner, or for good cause, a circuit court may commit such prisoner to a jail other than that located in its county or city. The keeper of the jail in making his account for the board of such prisoner shall include the prisoner in such account, as if the prisoner had actually been committed from his county or city. The authorities of the county or city from which the prisoner is sent shall be responsible for any damage done by him to the jail of the county or city in which such prisoner may be confined.

History. Code 1950, § 53-142; 1960, c. 376; 1982, c. 636; 1985, c. 321.

§ 53.1-77. Jurisdiction of judge or magistrate of adopting county or city authorized to issue temporary detention orders.

When the jail of any other county or city has been adopted or designated under the provisions of §§ 53.1-74 and 53.1-76 , any judge or magistrate authorized to issue temporary detention orders pursuant to §§ 37.2-809 through 37.2-813 of the adopting county or city shall have concurrent jurisdiction with those of the county or city wherein the adopted or designated jail is located, in proceedings under Chapter 8 (§ 37.2-800 et seq.) of Title 37.2, with respect to such persons as have been involuntarily admitted there from the adopting county or city. Such judge or magistrate may perform any such act or duty at such place as if such person was involuntarily admitted within the jurisdiction of the adopting county or city.

History. Code 1950, § 53-142.1; 1952, c. 264; 1970, c. 648; 1982, c. 636; 2005, c. 716.

The 2005 amendments.

The 2005 amendment by c. 716, effective October 1, 2005, rewrote the section.

§ 53.1-78. Jail for Supreme Court.

The jail of any county or city in which the Supreme Court or Court of Appeals or a panel thereof is sitting, may be used as a jail for such court.

History. Code 1950, § 53-143; 1982, c. 636; 1984, c. 703.

§ 53.1-79. Jails for United States prisoners; payment by United States.

The sheriff of any county or city or jail superintendent of any regional jail may receive into his jail any person committed thereto under the authority of the United States, and keep him safely according to the warrant or precept of commitment, until he shall be discharged under the laws of the United States. But no person arrested on civil process shall, under this section, be committed to any jail other than that of the county or city within which such person resides or is found.

The county or city or regional jail authority or, if none, the body responsible for the fiscal management of the regional jail shall be paid by the United States for the support of any such prisoner.

History. Code 1950, § 53-145; 1970, c. 648; 1982, c. 636; 1991, c. 383.

§ 53.1-79.1. Agreements to transfer, transport, and confine prisoners.

The sheriff or superintendent of any jail may enter into an agreement with the sheriff or superintendent of any other jail in the Commonwealth to transfer and transport prisoners between the respective facilities, and to confine such prisoners, unless such transfer is otherwise prohibited by law.

History. 1991, c. 192.

Article 3. Funding Local Correctional Facilities and Programs.

§ 53.1-80. State reimbursement of localities for construction.

  1. On and after July 1, 1993, the Commonwealth shall reimburse any city or county up to one-fourth of the capital costs of a jail construction, enlargement or renovation project upon a basis approved by the Board in accordance with the provisions of this section. On and after July 1, 1993, (i) any three or more cities or counties, or any combination thereof, which do not qualify for reimbursement pursuant to § 53.1-81 or § 53.1-82 and (ii) any two cities or counties or any combination of a city and a county which jointly construct, enlarge or renovate a jail upon a basis approved by the Board in accordance with the provisions of this section shall be reimbursed by the Commonwealth on a pro rata basis up to one-fourth of the capital costs, as defined in § 53.1-82.2 , of such project. The Board shall promulgate regulations, to include criteria which may be used to assess need and establish priorities, to serve as guidelines in evaluating requests for such reimbursement and to ensure the fair and equitable distribution of state funds provided for such purpose. The Department shall apply such regulations in preparing requests for appropriations. No such reimbursement shall be had unless the plans and specifications, including the need for additional personnel, thereof have been submitted to the Governor and the jail project has been approved by him. The Governor shall base his approval in part on the expected operating cost-efficiency of the interior design of the facility. Reimbursements shall be paid subject to the provisions of § 53.1-82.2 .No (i) project to construct, enlarge, or renovate a jail or regional jail facility or to enlarge or renovate an existing jail that was not approved by the Governor prior to July 1, 2015, or (ii) project that is not an enlargement or renovation of a regional jail created prior to July 1, 2015, shall be eligible for reimbursement from the Commonwealth unless such project has been specifically authorized in the general appropriation act.
  2. In the event that a county or city requests and receives financial assistance for capital costs of such jail project from the Department of Criminal Justice Services or from other public fund sources outside of the provisions of this law, the total financial assistance and reimbursement shall not exceed the total cost of the project.

History. Code 1950, § 53-133.1; 1968, c. 304; 1970, cc. 252, 373; 1973, c. 233; 1981, c. 380; 1982, c. 636; 1983, c. 358; 1989, c. 423; 1993, cc. 387, 787; 1995, c. 305; 2015, c. 749.

Editor’s note.

Acts 1989, c. 423, cl. 2 provides that reimbursement for jail construction, renovation or enlargement projects which were approved by the Board of Corrections and for which appropriation of state funds for reimbursement was specifically authorized prior to Dec. 1, 1989, shall be governed by the law as it existed prior to Dec. 1, 1989.

The 2015 amendments.

The 2015 amendment by c. 749 added the second paragraph of subsection A.

§ 53.1-81. Construction and operation of regional jail facilities; state reimbursement; agreements with Department.

  1. Three or more cities or counties, or any combination thereof, are authorized, pursuant to approval of the Board, to construct, enlarge or renovate a regional jail facility or to enlarge or renovate an existing jail for the purpose of establishing a regional jail facility. In addition, (i) any regional jail facilities established by three or more cities, counties or towns, or any combination thereof, on or before January 31, 1993, (ii) any existing regional jail facilities established by only two cities, counties or towns on or before June 30, 1982, and (iii) any regional jail facilities established by only two contiguous counties whose boundaries are not contiguous by land with the boundaries of any other county in the Commonwealth, may participate under the provisions of this section. On and after December 1, 1989, subject to the provisions of § 53.1-82.2 , the Commonwealth shall reimburse each such locality its pro rata share up to one-half of the capital costs, as defined in § 53.1-82.2 , of such construction, enlargement or renovation in accordance with the provisions of this section if the project was approved by the Governor prior to July 1, 2015, or the project is an enlargement or renovation of a regional jail facility created prior to July 1, 2015, and shall reimburse each such locality its pro rata share up to one-fourth of such capital costs if such project is approved by the Governor on or after July 1, 2015, and has been specifically authorized in the general appropriation act. On or after July 1, 2017, subject to the provisions of § 53.1-82.2, the Commonwealth shall reimburse each such locality its pro rata share up to one-fourth of the capital costs, as defined in § 53.1-82.2, for any construction, enlargement or renovation project in accordance with the provisions of this section if such project is approved by the Governor on or after July 1, 2017, and has been specifically authorized in the general appropriation act. However, regional jails created by any combination of three or more cities or counties on or after February 1, 1993, shall not be eligible for such reimbursement unless at least three of the participating localities of such combination were each operating a jail on February 1, 1993. The Board shall promulgate regulations, to include criteria which may be used to assess need and establish priorities, to serve as guidelines in evaluating requests for such reimbursement and to ensure the fair and equitable distribution of state funds provided for such purpose. The Department shall apply such regulations in preparing requests for appropriations. No such reimbursement shall be had unless the plans and specifications, including the need for additional personnel, thereof have been submitted to the Governor and the jail project has been approved by him. The Governor shall base his approval in part on the expected operating cost-efficiency of the interior design of the facility. Such reimbursement shall be paid subject to the provisions of § 53.1-82.2.Such counties, cities, towns, or combination thereof may enter into agreements with the Department of Corrections for the Department to operate such jail or to pay the costs of maintenance, upkeep and other operational costs of the jail. Each city, county or town shall, however, bear the expense of local prisoners from such city, county or town. In such case, the Department shall receive such costs from the funds appropriated in the general appropriation act for criminal costs. The method of operation by the Department shall be in the manner it prescribes, notwithstanding any other provision of law designating sheriffs as the keepers of jails.In lieu of an agreement by the localities with the Board for construction or operation of jail facilities, the Board may agree to sell land owned by the Commonwealth to the localities. The Governor is hereby authorized, at his discretion and upon the advice of the Board, to execute a conveyance of such land in a form approved by the Attorney General.
  2. In the event that a county, city or town requests and receives financial assistance for capital costs of such jail project from the Department of Criminal Justice Services or from other public fund sources outside of the provisions of this section, the total financial assistance and reimbursement shall not exceed the total cost of the project.

History. Code 1950, § 53-133.2; 1970, c. 419; 1972, c. 573; 1974, cc. 44, 45; 1981, c. 380; 1982, c. 636; 1983, c. 358; 1989, c. 423; 1993, cc. 387, 787; 1995, c. 305; 2015, c. 749; 2017, c. 211.

Editor’s note.

Acts 1989, c. 423, cl. 2 provides that reimbursement for jail construction, renovation or enlargement projects which were approved by the Board of Corrections and for which appropriation of state funds for reimbursement was specifically authorized prior to Dec. 1, 1989, shall be governed by the law as it existed prior to Dec. 1, 1989.

The 2015 amendments.

The 2015 amendment by c. 749 inserted “if the project was approved by the Governor prior to July 1, 2015, or the project is an enlargement or renovation of a regional jail facility created prior to July 1, 2015, and shall reimburse each such locality its pro rata share up to one-fourth of such capital costs if such project is approved by the Governor on or after July 1, 2015, and has been specifically authorized in the general appropriation act” in the third sentence of subsection A.

The 2017 amendments.

The 2017 amendment by c. 211 added the fourth sentence in subsection A.

§ 53.1-82. Regional contracts for cooperative jailing of offenders; state reimbursement.

  1. Three or more counties or cities, or any combination thereof, are authorized to contract for services for the detention and confinement of categories of offenders in single or regional jail facilities operated by the contracting jurisdictions. In addition, (i) any three or more counties, cities or towns, or any combination thereof, operating a jail facility pursuant to an agreement for cooperative jailing established on or before January 31, 1993, (ii) any existing regional jail facilities established by only two cities, counties, or towns on or before June 30, 1982, and (iii) any regional jail facilities established by only two contiguous counties whose boundaries are not contiguous by land with the boundaries of any other county in the Commonwealth, may participate under the provisions of this section. The Board shall promulgate regulations specifying the categories of offenders which may be served pursuant to the contracts provided for herein.The governing bodies of localities participating in an agreement for cooperative jailing shall create a board to advise the locality in which the jail facility is located on matters affecting operation of the facility. Each participating locality shall have at least one representative on the board. The sheriff and any member of the local governing body of each participating locality shall be eligible for appointment to the board; however, when a participating locality appoints more than one representative, the sheriff shall be appointed unless the sheriff is the administrator or superintendent of the jail facility operated pursuant to the agreement for cooperative jailing. A sheriff serving as such administrator or superintendent shall be an ex officio member of the board.When such contracts are approved by the Board and, for the implementation of the contract, require the construction, enlargement, or renovation of a regional jail facility or the enlargement or renovation of an existing jail, the Commonwealth shall reimburse each such locality its pro rata share, up to one-half, of the capital costs, as defined in § 53.1-82.2 , of such jail project in accordance with the provisions of this section and § 53.1-82.2 if the project was approved by the Governor prior to July 1, 2015, or the project is an enlargement or renovation of a regional jail facility created prior to July 1, 2015, and shall reimburse each such locality its pro rata share up to one-fourth of such capital costs if such project is approved by the Governor on or after July 1, 2015, and has been specifically authorized in the general appropriation act. On or after July 1, 2017, subject to the provisions of § 53.1-82.2 , the Commonwealth shall reimburse each such locality its pro rata share up to one-fourth of the capital costs, as defined in § 53.1-82.2, for any construction, enlargement or renovation project in accordance with the provisions of this section if such project is approved by the Governor on or after July 1, 2017, and has been specifically authorized in the general appropriation act. Any agreement for cooperative jailing entered into on or after July 1, 1991, which requires the construction, enlargement, or renovation of a single or regional jail facility shall require such counties, cities and towns to participate in the costs of the facility for a minimum period of thirty years.The Board shall promulgate regulations, to include criteria which may be used to assess need and establish priorities, to serve as guidelines in evaluating requests for such reimbursement and to ensure the fair and equitable distribution of state funds provided for such purpose. The Department shall apply such regulations in preparing requests for appropriations. No such reimbursement shall be had unless the plans and specifications, including the need for additional personnel, thereof have been submitted to the Governor, and the jail project has been approved by him. The Governor shall base his approval in part on the expected operating cost-efficiency of the interior design of the facility. Such reimbursement shall be paid subject to the provisions of § 53.1-82.2.
  2. In the event that a county, city or town requests and receives financial assistance for capital costs of a jail project from the Department of Criminal Justice Services or from other public fund sources outside of the provisions of this section, the total financial assistance and reimbursement shall not exceed the total cost of the project.In addition, no such reimbursement shall be had by localities entering into a contract pursuant to this section on or after February 1, 1993, unless at least three of the participating localities were each operating a jail on February 1, 1993.

History. Code 1950, § 53-133.3; 1981, c. 380; 1982, c. 636; 1983, c. 358; 1989, c. 423; 1991, c. 453; 1993, cc. 387, 787; 1995, c. 305; 2015, c. 749; 2017, c. 211.

Editor’s note.

Acts 1989, c. 423, cl. 2 provides that reimbursement for jail construction, renovation or enlargement projects which were approved by the Board of Corrections and for which appropriation of state funds for reimbursement was specifically authorized prior to Dec. 1, 1989, shall be governed by the law as it existed prior to Dec. 1, 1989.

The 2015 amendments.

The 2015 amendment by c. 749 added “if the project was approved by the Governor prior to July 1, 2015, or the project is an enlargement or renovation of a regional jail facility created prior to July 1, 2015, and shall reimburse each such locality its pro rata share up to one-fourth of such capital costs if such project is approved by the Governor on or after July 1, 2015, and has been specifically authorized in the general appropriation act” in the first sentence of the third paragraph of subsection A.

The 2017 amendments.

The 2017 amendment by c. 211 added the second sentence in the third paragraph of subsection A.

§ 53.1-82.1. Approval of jail projects by the Board; plan for community corrections.

The Board shall promulgate regulations requiring localities seeking approval of a jail project to (i) submit a community-based corrections plan and (ii) demonstrate that the project can be completed and operated in a cost-efficient manner. Such regulations shall require, at a minimum, the following:

  1. That the request include an analysis of staffing needs and a six-year operating budget for the proposed facility;
  2. That the request include a plan for development and implementation of pre-trial detention alternatives and post-disposition punishment alternatives on a systematic local and regional basis, which plan shall be reviewed, modified and approved by the Board with assistance from the Department of Criminal Justice Services; and
  3. That the project be based on a locality- or region-specific jail population forecast, which shall include an analysis of the impact on the jail population of the alternatives identified pursuant to subdivision 2 of this section, and which forecast shall be reviewed by the Department of Criminal Justice Services.The Board shall approve no proposed jail project which does not conform to the regulations promulgated pursuant to this section.The provisions of this section shall not apply to jail renovation projects which do not result in a net increase in available bed space.

History. 1993, cc. 387, 787; 2000, c. 1040.

Cross references.

As to establishment of a system of community-based services pursuant to the Comprehensive Community Corrections Act for Local-Responsible Offenders, see § 9.1-174 .

As to responsibility of community criminal justice boards, see § 9.1-180 .

As to pretrial services agencies, see § 19.2-152.2 .

§ 53.1-82.2. Method of reimbursement; involvement of the Treasury Board.

  1. Reimbursements by the Commonwealth to localities or regional jail authorities for a portion of the capital costs of a jail project, made pursuant to §§ 53.1-80 , 53.1-81 , 53.1-82 , or § 53.1-95.19 may be effected by one of the following methods:
    1. In one lump sum payment to be made upon completion of the project, for minor renovation projects, or two equal lump sum payments, one such payment to be made upon certification that the construction, enlargement or renovation is fifty percent complete and the second such payment to be made upon completion of the project, such payments to be paid by the State Treasurer out of funds appropriated to the Department of Corrections;
    2. Over a specified period of time through a contractual agreement entered into by the Treasury Board and approved by the Governor, on behalf of the Commonwealth, and the locality, localities or regional authority or other combination of localities undertaking a jail project, such payments to be paid by the State Treasurer out of funds appropriated to the Treasury Board; or
    3. In one lump sum payment to be made upon completion of the project by the Virginia Public Building Authority pursuant to § 2.2-2263 , including the Commonwealth’s share of the interest costs expended by the locality or regional jail authority for financing such project during the period from fifty percent completion of construction to final completion of construction.
  2. The General Assembly shall have the sole authority to determine whether reimbursement will be made pursuant to subdivision A 1, A 2, or A 3. The Department of Planning and Budget, after consulting with the Treasury Board, shall evaluate all proposed jail projects and make recommendations to the Governor regarding the method of reimbursement for inclusion in his biennial budget.
  3. Any contract for reimbursement over a specified period of time entered into pursuant to subdivision A 2 shall include the following:
    1. The Commonwealth shall reimburse a portion of financing costs as provided in subsection E below;
    2. The Commonwealth’s reimbursement payments shall be subject to appropriation;
    3. In the event that the jail project is financed through an issuance of securities, the Commonwealth’s reimbursement payments shall be calculated using the coupon interest rates received by the locality or jail authority at the time the securities for the project are sold and shall be made pursuant to a schedule to be set forth in the contract;
    4. In the event that a jail project is financed through an issuance of securities, and coupon interest rates are not available due to the structure of the securities, the Treasury Board is authorized to make such adjustments as are necessary and reasonable to calculate the Commonwealth’s payments;
    5. In the event that the jail project is financed through a method other than the issuance of securities, the Commonwealth’s payment shall include interest payments based on an interest rate assumption equal to the prevailing AA rate for tax-exempt bonds issued by the Commonwealth or agencies thereof, or the actual rate achieved, whichever is lower, and the schedule for the Commonwealth’s reimbursement payments shall be set forth in the contract; and
    6. Such other terms and conditions as are necessary to specify the structure of the Commonwealth’s participation in project financing and as may be required by guidelines established by the Treasury Board.Reimbursement to localities pursuant to this section shall be available without regard to the security level of the facility constructed, enlarged or renovated, provided such facility satisfies applicable standards established by the Board pursuant to § 53.1-68 .
  4. For purposes of this article, “capital costs” includes, but is not limited to, actual construction costs, costs of land acquisition, if the land purchased is used exclusively for siting a jail facility, architectural and engineering fees, and fixed equipment. “Capital costs” does not include administrative costs nor a financial advisor’s, an investment banker’s, or attorneys’ fees incurred by local governments or, except in the case of minimum security facilities, loose equipment or furnishings.
  5. For purposes of this article, “financing costs” means the total of all costs incurred by the locality, localities or regional authority or other combination of localities as are deemed reasonable and necessary by the Treasury Board to execute the financing of the Commonwealth’s payment of capital costs and to fund such funds and accounts as the Treasury Board determines to be reasonable and necessary.

History. 1993, cc. 387, 787; 1995, c. 305; 1996, c. 835.

§ 53.1-82.3. Budgeting schedule for jail projects.

  1. Any city or county or any combination of cities or counties requesting state financial assistance pursuant to §§ 53.1-80 , 53.1-81 or § 53.1-82 shall, on or before March 1 biennially in the odd-numbered years, submit to the Governor, in a format prescribed by the Department of Corrections for such purpose, a community-based corrections plan and specifications, including detailed cost estimates of any facility construction. On or before July 1 in the odd-numbered years, such localities shall also submit to the Governor, in a format prescribed for such purpose by the Department of the Treasury, the expected financing costs for any such facility construction in accordance with § 53.1-82.2 . The Governor shall submit his recommendations for funding such projects as part of the budget bill on or before December 20 of the year immediately prior to the beginning of each regular session held in an even-numbered year of the General Assembly. Requests for appropriations of such funds shall be considered by the General Assembly only in even-numbered years.
  2. In the event that the state share of reimbursable costs of the jail facility is estimated to be less than or equal to $1,000,000, such localities shall be exempt from submitting to the Governor, in a format prescribed for such purpose by the Department of the Treasury, the expected financing costs for any such facility construction in accordance with subsection A above, unless such localities seek reimbursement of financial costs associated with such facility construction.

History. 1993, cc. 387, 787; 1995, c. 305; 1998, cc. 498, 504; 2000, c. 1040.

The 1998 amendments.

The 1998 amendments by cc. 498 and 504 are identical, and in subsections A and B, substituted “Department of the Treasury” for “Treasury Board.”

The 2000 amendments.

The 2000 amendment by c. 1040 substituted “a community-based corrections plan” for “community corrections plans” in the first sentence of subsection A.

§ 53.1-83. Repealed by Acts 1993, cc. 387 and 787.

Cross references.

For current provisions as to reimbursement for the construction of a jail, see § 53.1-82.2 .

§ 53.1-83.1. How state appropriations for operating costs of local correctional facilities determined.

The Governor’s proposed biennial budget bill shall include, for each fiscal year, an appropriation for operating costs for local correctional facilities. The proposed appropriation shall include:

  1. An amount for compensating localities for the cost of maintaining prisoners arrested on state warrants in local jails, regional jails and jail farms, at a specified rate per prisoner day;
  2. An amount for maintaining convicted state felons in local correctional facilities, at a specified rate per felon day, pursuant to § 53.1-20.1 ;
  3. An amount to pay two-thirds of the salaries of medical and treatment personnel approved by the State Compensation Board; and
  4. An amount to be set aside for unanticipated medical emergencies.

History. 1983, c. 358; 1992, cc. 333, 573.

§ 53.1-84. State funds available to local correctional facilities for operating costs.

The Compensation Board shall apportion among local correctional facilities moneys appropriated in the general appropriation act for the purpose of financial assistance for the confinement of persons in local facilities in accordance with reports of prisoner days provided by the Department.

The county or city receiving such funds or a combination of counties or cities or both receiving such funds on behalf of a regional facility shall pay therefrom the operating costs of its local adult correctional facilities and programs. Criminal costs prior to confinement shall be paid out of funds appropriated pursuant to § 19.2-332 .

Regulations adopted by the Board to implement the provisions of §§ 53.1-84 through 53.1-86 shall not be subject to legislative review as provided in § 2.2-4014 . In the adoption of such regulations, the Board shall comply with all other requirements of the Administrative Process Act (§ 2.2-4000 et seq.), and in any subsequent amendments thereto shall comply with all the provisions of § 2.2-4012 .

History. 1982, c. 636; 1983, c. 358.

§ 53.1-85. Time and manner of payment.

Notwithstanding any contrary provisions of this Code which provide for state reimbursement of certain costs incurred by local correctional facilities, the time and manner of such payments shall be as hereinafter prescribed.

Each facility’s apportionment pursuant to § 53.1-84 shall be paid by the Compensation Board to the responsible local governing body or fiscal agent of such facility in quarterly installments beginning July, 1983.

The amount of the quarterly installment for each facility will be the sum of the following:

  1. The number of state prisoner days registered by the facility in the preceding quarter, pursuant to § 53.1-121 , times the specified rate per prisoner day;
  2. The number of prisoner days registered for convicted state felons by the facility in the preceding quarter times the specified rate per felon day, pursuant to § 53.1-20.1 ; and
  3. One-fourth of the annual cost for salaries and fringe benefits for medical and treatment personnel approved by the Compensation Board pursuant to § 15.2-1636.7 . Funds held in the emergency reserve shall be distributed on the written authorization of the Compensation Board. In the event of emergencies, the Compensation Board may reallocate any portion of the reserve among individual facilities. Any balance remaining in the reserve at the close of the budgetary period shall revert to the general fund of the state treasury.

History. 1982, c. 636; 1983, c. 358; 1992, cc. 333, 573.

§ 53.1-86. Limitation on use of state funds; records of receipts and disbursements.

No locality receiving state funds under § 53.1-85 shall use such funds for any purpose other than for paying expenses incurred as the result of the confinement of persons in local correctional facilities. The Department shall require a locality to return any portion of state funds expended in violation of this provision to the state treasury. Should an unexpended balance of state funds exist at the end of the apportionment year, the unencumbered funds in such balance may be reverted to the local treasury and subsequently shall be expended for operating expenses of local correctional facilities. In the case of regional correctional facilities, the unexpended balance of state funds shall be apportioned by the regional facility’s governing body to the participating localities based on the number of prisoner days of persons confined in the facility from each jurisdiction.

Each locality shall keep records of receipts and disbursements of state funds received pursuant to § 53.1-85 . Such records shall be open for evaluation by the Department and audit by the Auditor of Public Accounts.

History. 1982, c. 636.

OPINIONS OF THE ATTORNEY GENERAL

The use of state funds appropriated for a local correctional facility

is limited by this section to the payment of expenses incurred for persons confined in the correctional facility. See opinion of Attorney General to The Honorable J. T. “Tommy” Whitt, Sheriff for Montgomery County, 04-075 (10/19/04).

Surplus funds, if any, may be returned to the local treasury

to be used for such operating expenses, and any excess funds not so used must be returned to the state treasury. See opinion of Attorney General to The Honorable J. T. “Tommy” Whitt, Sheriff for Montgomery County, 04-075 (10/19/04).

§ 53.1-87. Cost of maintenance of jails; payment by localities of respective shares of costs; judicial resolution of disagreements.

  1. In any instance in which a local correctional facility of a county, city or town is designated by the Board as the place where prisoners committed by the courts or other authorities of any other county, city or town shall be confined, any capital outlay expenses incurred for necessary repairs, improvements or additions to such facility, and all costs of maintenance of the facility chargeable to the localities, shall be borne ratably by the several counties, cities or towns using it.
  2. The share of each respective county, city or town involved in such costs shall be such proportion of the total cost of such repairs, improvements, additions and other such costs as the total aggregate number of days spent in local correctional facilities by prisoners committed by the courts or other authorities of such county, city or town, for the five-year period next preceding the year in which such repairs, improvements or additions are begun, or other costs incurred, bears to the total aggregate number of days spent in local correctional facilities by the prisoners committed by the courts or other authorities of both or all of the counties, cities and towns using the facility to which such repairs, improvements or additions are made or in which such other costs are incurred. The amount to be paid by each county, city or town involved shall be determined by the Board on the basis herein set forth.
  3. The Board shall furnish a statement of the several shares of the cost so determined to the governing body of each county, city and town involved, and the respective shares shall be paid within thirty days from the date upon which such statement is furnished. If the costs of any such repairs, improvements or additions will not exceed $2000 they may be authorized by the governing body of the county, city or town to whose correctional facility such repairs, improvements or additions are to be made. If the costs will exceed $2000, such repairs, improvements or additions shall be recommended by the Board and agreed on in advance by the governing bodies of both or all of the counties, cities and towns involved.In case of disagreement, the matter of the extent of the repairs, improvements or additions and the proportionate cost to the respective localities involved shall be determined by the circuit court of the locality which owns or maintains the correctional institution proposed to be repaired, improved or added to, upon the petition of the Board.

History. Code 1950, § 53-136; 1970, c. 648; 1982, c. 636.

§ 53.1-88. Governing body to examine statements, accounts and invoices and issue warrants.

The governing body of each city or county or its duly authorized representative shall examine all statements of account and invoices laid before it by the sheriff pursuant to §§ 53.1-126 and 53.1-133.5 . After satisfying itself that the statements and invoices are correct, the governing body shall cause warrants to be issued on the county or city treasurer, or other disbursing officer, for the payment of such accounts and invoices.

History. Code 1950, § 53-178; 1982, c. 636; 1992, c. 859.

§ 53.1-89. Repealed by Acts 1983, c. 358.

§ 53.1-90. Pay for United States prisoners.

Each sheriff or jail superintendent shall collect from the United States, for prisoners of the United States confined in the jail of his county, city or region, such amounts as shall be agreed upon by the governing body of the county or city or, in the case of a regional jail, the regional jail authority or, if none, the body responsible for the fiscal management of the regional jails and the appropriate authorities of the Government of the United States, which amounts shall not be less than the actual cost of feeding, clothing, caring for and furnishing medicine and medical attention for such prisoners.

History. Code 1950, § 53-181; 1982, c. 636; 1991, c. 383.

§ 53.1-91. Pay for prisoners from other counties, cities or towns.

Each sheriff or jail superintendent shall collect from the counties, cities and towns of the Commonwealth, other than the county, city or region for which he is elected or appointed, and from any other state or country for which any prisoner is held in such jail, the reasonable costs of guarding, feeding, clothing, caring for and furnishing medicine and medical attention for prisoners held for such county, city, town, state or country, to be determined by agreement with the governmental unit involved, or, in the absence of such agreement, as shall be determined by the governing body of his county, city or regional jail.

The term “reasonable costs,” as used in this section, means an amount not to exceed actual costs, including depreciation, less such amounts as may be paid by the Commonwealth pursuant to §§ 15.2-1609.8 and 53.1-85 .

History. Code 1950, § 53-182; 1982, c. 636; 1983, c. 358; 1991, c. 383.

§ 53.1-92. Disposition of money collected from United States or other counties, cities or towns.

All moneys so collected by such sheriff from the United States or from any such county, city, town, state or country shall be promptly paid into the treasury of his county or city. The total amount so collected shall be retained by such county or city. All moneys so collected by jail superintendents shall be promptly paid into the treasury of the regional jail authority or, if none, the body responsible for the fiscal management of the regional jail.

History. Code 1950, § 53-183; 1982, c. 636; 1991, c. 383.

§ 53.1-93. When sheriffs to summon or employ guards and other persons; allowances therefor; fees charged to prisoner.

Whenever in the discretion of the court it is necessary for the safekeeping of a prisoner under charge of or sentence for a crime, whether the prisoner be in jail, hospital, court or elsewhere, the court may order the sheriff to summon a sufficient guard. Whenever ordered by the court to do so, the sheriff shall summon or employ temporarily such persons as may be needed to preserve proper order or otherwise to aid the court in its proper operation and functioning. For such guard or other service the court may allow so much as it deems proper, not exceeding the hourly equivalent of the minimum annual salary paid a full-time deputy sheriff who performs like services in the same county or city. In addition, mileage and other expenses for rendering the services shall be paid for each such person. A prisoner may be charged reasonable fees for providing him a security escort, supervision and transportation to and from a funeral or graveside service.

History. Code 1950, §§ 19-283, 19.1-308, 53-183.2; 1956, c. 687; 1960, c. 366; 1972, c. 145; 1973, c. 401; 1976, c. 286; 1981, c. 386; 1982, c. 636; 2002, c. 336.

§ 53.1-94. Same when paid by county or city; same when by Compensation Board.

The circuit court, before certifying any allowance pursuant to § 53.1-93 , shall inquire into the condition of the jail. If it appears that a guard was necessary because of the insecurity of the jail, it shall order the allowance to be certified to the governing body of the county or city. If otherwise, and the guard was necessary, the allowance shall be paid out of the budget of the sheriff as approved by the Compensation Board.

History. Code 1950, §§ 19-284, 19.1-309, 53-183.3; 1960, c. 366; 1972, c. 145; 1982, c. 636; 1985, c. 321.

§ 53.1-95. Provisions applicable to jail farms of counties and cities.

  1. When the control, management and supervision of the jail farm of any county or city is not vested in the sheriff of such county or city, such county or city shall be paid out of state funds pursuant to § 53.1-85 for the care and custody at such jail farm of persons accused or convicted of any offense against the laws of the Commonwealth, and witnesses held in cases to which the Commonwealth is a party. Such payments shall include only the reasonable cost of guarding, and providing necessary housing, maintenance, administrative expenses, food, clothing, medicine and medical attention for such prisoners.
  2. When the control, management and supervision of the jail farm of any county or city is not vested in the sheriff of such county or city, the county or city may collect from the United States, for prisoners of the United States at the jail farm, such amounts as may be agreed upon by the county or city and the appropriate authorities of the Government of the United States, which amounts shall not be less than the actual cost of feeding, clothing and caring for such prisoners. Such county or city may collect from any state, other than this Commonwealth, and from any country other than the United States, for which any prisoner is held at the jail farm of such county or city, the cost of guarding, and providing necessary food, clothing, medicine and medical attention for prisoners held for such other state or country. The amount thereof shall be agreed upon by the governmental units involved.

A1. Such county or city may also collect from other counties, cities or towns of the Commonwealth for which any prisoner is held at the jail farm of such county or city the reasonable cost of feeding, clothing, caring for and furnishing medicine and medical attention for such prisoner, and maintenance and administrative costs of the facility on a per prisoner basis. As used in this section, the term “reasonable cost” means an amount not to exceed actual costs, including depreciation, less such amounts as may be paid by the Commonwealth pursuant to §§ 15.2-1609.8 and 53.1-85 .

History. Code 1950, § 53-188; 1960, c. 411; 1982, c. 636; 1983, c. 358.

§ 53.1-95.1. Limits on state expenditures.

The Governor may withhold approval for state expenditures, by reimbursement or otherwise, for the purposes set out in this article as provided in the current general appropriation act.

History. 1986, c. 394.

Article 3.1. Jail Authorities.

§ 53.1-95.2. Jail authority.

The governing bodies of two or more counties, cities, or towns or a combination thereof may by concurrent ordinances or resolutions or by agreement, create a jail authority. Such authority shall be subject to all rights, privileges, and obligations contained in Chapter 3 (§ 53.1-68 et seq.) of this title.

History. 1990, c. 837; 1992, c. 421.

Editor’s note.

Acts 1991, c. 568, cl. 2 provides that the membership of regional jail and jail farm boards provided for by § 53.1-106 , regional jail authorities, and jail authorities provided for by Article 3.1 (§ 53.1-95.2 et seq.) of Chapter 3 of Title 53.1 established prior to March 25, 1991, and all actions taken by such boards and authorities prior to March 25, 1991, are hereby ratified and confirmed.

§ 53.1-95.3. Definitions.

As used in this article, the following words and terms shall have the following meanings unless the context indicates another meaning or intent:

“County” means any county in the Commonwealth of Virginia.

“Governing body” means in the case of a county the board of supervisors and in the case of a city or town the board, commission, council or other body by whatever name it may be known, in which the general legislative powers of the city or town are vested.

“Political subdivision” means a county, city, or town of the Commonwealth of Virginia.

“Unit” means any department, institution or commission of the Commonwealth of Virginia and any public corporate instrumentality thereof, and any district, and includes counties and municipalities.

History. 1990, c. 837; 1992, c. 421.

§ 53.1-95.4. Ordinance, agreement or resolution creating authority.

  1. Each such ordinance, agreement or resolution shall include the following:
    1. The name of the “authority” and address of its principal office.
    2. The name of each participating political subdivision, together with the names, addresses and terms of office of the first members of the board of the authority.
    3. The purpose or purposes for which the authority is to be created together with, insofar as the governing bodies of the participating political subdivisions determine to be practicable, preliminary estimates of capital costs and financing proposals for any specific project or projects to be undertaken by the authority.
    4. The number of members who shall exercise the powers of the authority and the number from each participating political subdivision.
  2. Any such ordinance, agreement or resolution that does not set forth the information required in subdivision A 3 of this section regarding capital cost estimates and project financing proposals shall also set forth a finding that inclusion of such information is impracticable.

History. 1990, c. 837.

§ 53.1-95.5. Joinder of new subdivision; withdrawal from authority.

Any political subdivision may become a member of any existing authority, and any political subdivision which is a member of an existing authority may withdraw therefrom, but no political subdivision shall be permitted to withdraw from any authority after any obligation has been incurred by the authority except by unanimous vote of all members of the authority.

The governing body of any political subdivision wishing to withdraw from an existing authority shall signify its desire by resolution or ordinance. The governing body of any political subdivision wishing to become a member of an existing authority and the governing bodies of the political subdivisions then members of the authority shall by concurrent resolutions or ordinances or by agreement provide for the joinder of such political subdivision and specify the number and term of office of members of the expanded authority which are to be appointed by each of the participating political subdivisions, together with the name, address and term of office of initial appointments to membership.

History. 1990, c. 837.

§ 53.1-95.6. Governing body.

The powers of the authority shall be exercised by a governing body established in the manner provided in § 53.1-106 .

History. 1990, c. 837.

§ 53.1-95.7. Powers of authority.

Each authority created hereunder shall be deemed to be an instrumentality exercising public and essential governmental functions to provide for the public safety and welfare, and each such authority is hereby authorized and empowered:

  1. To have a seal and alter the same at pleasure;
  2. To acquire by gift, purchase, lease, or otherwise, and to hold, to sell, at public or private sale, or exchange, lease, mortgage, pledge, subordinate interest in, or otherwise dispose of real and personal property of every kind and character for its purposes;
  3. To appoint, select, and employ officers, agents, and employees, including a superintendent of the regional correctional facility and necessary jail officers and employees therefor, and also including engineering and construction experts, fiscal agents and attorneys, and to fix their respective compensations;
  4. To make contracts and leases and to execute all instruments necessary or convenient, including contracts for construction and financing of projects and leases of projects or contracts with respect to the use of projects which it causes to be erected or acquired, and to dispose by conveyance of its title in fee simple of real and personal property of every kind and character, and any and all political subdivisions, departments, institutions, or agencies of the Commonwealth are hereby authorized to enter into contracts, leases, or agreements with the authority upon such terms and for such purposes as they deem advisable;
  5. To construct, erect, acquire, own, repair, remodel, maintain, add to, extend, improve, equip, furnish, operate, and manage projects, the cost of any such project to be paid in whole or in part from the proceeds or other funds made available to the authority;
  6. To accept loans and grants of money or materials or property of any kind from the United States of America or any agency or instrumentality thereof, upon such terms and conditions as the United States of America or such agency or instrumentality may impose;
  7. To accept loans and grants of money or materials or property of any kind from the Commonwealth of Virginia or any agency or instrumentality or political subdivision thereof, upon such terms and conditions as the Commonwealth of Virginia or such agency or instrumentality or political subdivision may impose;
  8. To borrow money for any of its corporate purposes and to execute evidences of such indebtedness and to secure the same and to issue negotiable revenue bonds payable solely from funds pledged for that purpose and to provide for the payment of the same and for the rights of the holders thereof. Any city or county participating in the authority may lend, advance, or give money or materials or property of any kind to the authority;
  9. To exercise any power usually possessed by private corporations performing similar functions, which is not in conflict with the Constitution and laws of the Commonwealth;
  10. An authority created pursuant to this article and any trustee acting under any trust indenture are specifically authorized from time to time to sell, lease, grant, exchange, or otherwise dispose of any surplus property, both real and personal, or interest therein not required in the normal operation of and usable in the furtherance of the purpose for which the authority was created, except as such right and power may be limited as provided in § 53.1-95.8 hereof;
  11. To sue and be sued in its own name, plead and be impleaded;
  12. To adopt, amend, or repeal bylaws, rules, and regulations, not inconsistent with this article or the general laws of the Commonwealth, for the regulation of its affairs and the conduct of its business and to carry into effect its powers and purposes;
  13. To do all things necessary or convenient to carry out the powers expressly given in this article.

History. 1990, c. 837; 1994, c. 270.

OPINIONS OF THE ATTORNEY GENERAL

Qualified law-enforcement officer under federal Act. —

A local or regional jail officer who is not part of a local police or sheriff’s department may meet the definition of a “qualified law enforcement officer” for purposes of the federal Law Enforcement Officers Safety Act of 2004. See opinion of Attorney General to Mr. Charles E. Jett, Sheriff for Stafford County, 05-026 (6/21/05).

§ 53.1-95.8. Authority of superintendent and jail officers; oath and bond; fees charged to prisoner.

The superintendent appointed by an authority created pursuant to this article to administer its correctional facility shall have and exercise the same control and authority over the prisoners committed or transferred to such facility as the sheriffs of this Commonwealth have by law over the prisoners committed or transferred to their jails.

During the term of their appointment, the superintendent and jail officers are hereby vested with the powers and authority of a conservator of the peace (i) within the limits of such correctional facility and within one mile thereof; (ii) for the purpose of conveying prisoners to and from such facility; (iii) for the purpose of enforcing the provisions of alternative incarceration and treatment programs pursuant to §§ 53.1-129 , 53.1-131 , and 53.1-131 .2; (iv) for the purpose of providing security and supervision of prisoners taken to a medical, dental, or psychiatric facility; and (v) for the purpose of providing a security escort and supervision of prisoners transported to a funeral or graveside service. Prisoners may be charged reasonable fees for services described in clause (v).

Before entering upon the duties of their office, the superintendent and jail officers shall take and subscribe the oath prescribed by § 49-1 . An authority created pursuant to this article may require the superintendent or jail officers or both to give bond in such penalty and with such security as the authority may prescribe, conditioned upon the faithful discharge of the duties of their offices.

History. 1990, c. 837; 1994, cc. 270, 923, 953; 2002, c. 336; 2004, c. 378.

The 2002 amendments.

The 2002 amendment by c. 336 added the last sentence of the second paragraph.

The 2004 amendments.

The 2004 amendment by c. 378 deleted “and pretrial supervision programs operated pursuant to § 19.2-123 ” following “and 53.1-131.2 ” in clause (iii) in the second paragraph.

OPINIONS OF THE ATTORNEY GENERAL

Execution of criminal warrants. —

Officers of a regional jail do not have the authority to execute criminal warrants in the jail. See opinion of Attorney General to The Honorable Roy F. Evans, Jr., Commonwealth’s Attorney for Smyth County, 06-005 (3/22/06).

§ 53.1-95.8:1. Handling of funds for regional correctional facility; county or city treasurer or director of finance as fiscal agent.

Any authority constituted pursuant to the provisions of this article or Article 1.1 (§ 53.1-71.1 et seq.) may appoint as its fiscal agent the treasurer of a county or city which is a member of the authority, or in the case of member jurisdictions where there is no treasurer, the director of finance. No treasurer or director of finance shall be appointed as fiscal agent without their concurrence. In the event such treasurer or director of finance is appointed, all disbursements on behalf of the authority shall be by warrant signed by the chairman of the authority or his designee and countersigned by such treasurer or director of finance as fiscal agent. For his services as fiscal agent, a treasurer or director of finance thus appointed may be paid such salary supplement and reimbursed such expenses as may be agreed upon by the board of the authority and the treasurer or director of finance. Such salary supplement and expenses shall be borne exclusively by the authority and not by the Compensation Board.

History. 1996, c. 623.

§ 53.1-95.9. Acquisition of interests in land.

An authority created pursuant to this article is hereby authorized and empowered to acquire by gift or by lease or purchase solely from funds provided under the provisions of this article such lands, structures, property, rights, rights-of-way, franchises, easements, and other interests in lands as it may deem necessary or convenient for the construction and operation of the project upon such terms and at such prices as may be considered by it to be reasonable and can be agreed upon between it and the owner thereof.

All public agencies and the commissions of the Commonwealth, with the approval of the Governor, are hereby authorized and empowered to lease, lend, grant, or convey to an authority created pursuant to this article at its request, upon such terms and conditions as may be mutually agreed upon, without the necessity for any advertisement, order of court, or other action or formality, any real property which may be necessary or convenient to the effectuation of the authorized purposes of the authority, including real property already devoted to public use.

Title to any property acquired by an authority created pursuant to this article shall be taken in the name of the authority.

History. 1990, c. 837.

§ 53.1-95.10. Issuance of revenue bonds.

An authority created pursuant to this article is hereby authorized to provide by resolution for the issuance, at one time or from time to time, of revenue bonds of the authority for the purpose of paying all or any part of the cost of the project. The principal of and the interest on such bonds shall be payable solely from the funds herein provided for such payment. The bonds of each issue shall be dated, shall bear interest at such rate or rates as shall be fixed by the authority, shall mature at such time or times not exceeding forty years from their date or dates, as may be determined by the authority, and may be made redeemable before maturity, at the option of the authority, at such price or prices and under such terms and conditions as may be fixed by the authority prior to the issuance of the bonds. The authority shall determine the form and the manner of execution of the bonds, including any interest coupons to be attached thereto, and shall fix the denomination or denominations of the bonds and the place or places of payment of principal and interest, which may be at any bank or trust company within or without the Commonwealth. In case any officer whose signature or a facsimile of whose signature shall cease to be such officer before the delivery of such bonds, such signature or such facsimile shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until such delivery. Notwithstanding any other provision of this article or any recitals in any bonds issued under the provisions of this article, all such bonds shall be deemed to be negotiable instruments under the laws of the Commonwealth. The bonds may be issued in coupon or in registered form, or both, as the authority may determine, and provision may be made for the registration of any coupon bonds as to principal alone and also as to both principal and interest, for the reconversion into coupon bonds of any bonds registered as both principal and interest and for the interchange of registered and coupon bonds. The authority may sell such bonds in such manner, either at public or negotiated sale, or for such price, as it may determine will best effectuate the purposes of this article.

The proceeds of the bonds shall be used solely for the payment of the cost of the project and shall be disbursed in such manner and under such restrictions, if any, as the authority may provide in the resolution authorizing the issuance of such bonds or in the trust agreement hereinafter mentioned securing the same. If the proceeds of the bonds of any issuance, by error of estimates or otherwise, shall be less than such cost, additional bonds may in like manner be issued to provide the amount of such deficit, and, unless otherwise provided in the resolution authorizing the issuance of such bonds or in the trust agreement securing the same, shall be deemed to be the same issue and shall be entitled to payment from the same fund without preference or priority of the bonds first issued. If the proceeds of the bonds of any issue shall exceed such cost, the surplus shall be deposited to the credit of the sinking fund for such bonds.

Prior to the preparation of definitive bonds, the authority may, under like restrictions, issue interim receipts or temporary bonds, with or without coupons, exchangeable for definitive bonds when such bonds shall have been executed and are available for delivery. The authority may also provide for the replacement of any bonds which shall become mutilated or shall be destroyed or lost. Bonds may be issued under the provisions of this article without obtaining the consent of any department, division, commission, board, bureau, or agency of the Commonwealth, and without any other proceedings or the happening of any conditions other than those proceedings or conditions which are specifically required by this article.

Revenue bonds issued under the provisions of this article shall not be deemed to constitute a pledge of the faith and credit of the Commonwealth or of any political subdivision thereof. All such bonds shall contain a statement on their face substantially to the effect that neither the faith and credit of the Commonwealth nor the faith and credit of any county, city, town, or other subdivision of the Commonwealth is pledged to the payment of the principal of or the interest on such bonds. The issuance of revenue bonds under the provisions of this article shall not directly or indirectly or contingently obligate the Commonwealth or any county, city, town, or other subdivision of the Commonwealth to levy any taxes whatever therefor or to make any appropriation for their payment except from the funds pledged under the provisions of this article.

History. 1990, c. 837.

§ 53.1-95.11. Trust agreements.

In the discretion of an authority created pursuant to this article, any bonds issued under the provisions of this article may be secured by a trust agreement by and between the authority and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without the Commonwealth. Such trust agreement or the resolution providing for the issuance of such bonds may pledge or assign the charges and other revenues to be received, but shall not convey or mortgage the project or any part thereof. Such trust agreement or resolution providing for the issuance of such bonds may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the authority in relation to the acquisition of property and the construction, improvement, maintenance, repair, operation, and insurance of the project, the rates to be charged for services, and the custody, safeguarding, and application of all moneys. It shall be lawful for any bank or trust company incorporated under the laws of the Commonwealth which may act as depository of the proceeds of bonds or of revenues to furnish such indemnifying bonds or to pledge such securities as may be required by the authority. Any such trust agreement may set forth the rights and remedies of the bondholders and of the trustee, and may restrict the individual right of action by bondholders. In addition to the foregoing, any such trust agreement or resolution may contain such other provisions as the authority may deem reasonable and proper for the security of the bondholders. All expenses incurred in carrying out the provisions of such trust agreement or resolution may be treated as a part of the cost of the operation of the project.

History. 1990, c. 837.

§ 53.1-95.12. Charge for use of services.

An authority created pursuant to this article is hereby authorized to fix, revise, and charge for the use of the service furnished by the project and to contract with any unit or department of government at any level, including cities, counties, towns, authorities, regional jail boards, and the state and federal governments and their respective departments, commissions and agencies, desiring the use of any part thereof, and to fix the terms, conditions, rents, and rates of charges for such use. Such charges shall be so fixed and adjusted in respect to the aggregate of the charges from the project as to provide a fund sufficient with other revenues, if any, to pay (i) the cost of maintaining, repairing, and operating such project and (ii) the principal of and interest on such bonds as the same shall become due and payable and to create reserves for such purposes. The revenues derived from the project, except such part thereof as may be necessary to pay such cost of maintenance, repair, and operation and to provide such reserves therefor as may be provided for in the resolution authorizing the issuance of such bonds or in the trust agreement securing the same, shall be set aside at such regular intervals as may be provided in such resolution or such trust agreement in a sinking fund which is hereby pledged to, and charged with, the payment of the principal of and the interest on such bonds as the same shall become due, and the redemption price or the purchase price of bonds retired by call or purchase as therein provided. Such pledge shall be valid and binding from the time when the pledge is made; the revenues or other moneys so pledged and thereafter received by the authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act, and the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the authority, irrespective of whether such parties have notice thereof. Neither the resolution nor any trust agreement by which a pledge is created need be filed or recorded except in the records of the authority. The use and disposition of moneys to the credit of such sinking fund shall be subject to the provisions of the resolution authorizing the issuance of such bonds or of such trust agreement. Except as may otherwise be provided in such resolution or such trust agreement, such sinking fund shall be a fund for all such bonds without distinction or priority of one over another.

History. 1990, c. 837.

§ 53.1-95.13. Revenues and proceeds from sale of bonds.

All moneys received pursuant to the provisions of this article, whether as proceeds from the sale of bonds or as revenues, shall be deemed to be trust funds to be held and applied solely as provided in this article. An authority created pursuant to this article may provide for the payment of its revenues to such officer, board, or depository as it may designate for the custody thereof, and for the method of disbursement thereof, with such safeguards and restrictions as it may determine. The authority shall, in the resolution authorizing the bonds or in the trust agreement securing such bonds, provide for the payment of the proceeds of the sale of the bonds to a trustee, which shall be any trust company or bank having the powers of a trust company within or without the Commonwealth, which shall act as trustee of the funds, and hold and apply the same to the purposes of this article, subject to such regulations as this article and such resolution or trust agreement may provide. The trustee may invest and reinvest such funds in such securities as may be provided in the resolution authorizing the bonds or in the trust agreement securing such bonds.

History. 1990, c. 837.

§ 53.1-95.14. Rights of bond holders and trustees.

Any holder of bonds issued under the provisions of this article or of any of the coupons appertaining thereto, and the trustee under any trust agreement, except to the extent the rights herein given, may be restricted by such trust agreement, may either at law or in equity, by suit, action, injunction, mandamus, or other proceedings, protect and enforce any and all rights under the laws of the Commonwealth or granted by this article or under such trust agreement or the resolution authorizing the issuance of such bonds and may enforce and compel the performance of all duties required by this article or by such agreement or resolution to be performed by an authority created pursuant to this article or by any officer or agent thereof including the fixing, charging, and collection of such charges.

History. 1990, c. 837.

§ 53.1-95.15. Exemption from taxes.

The exercise of the powers granted by this article shall be in all respects for the benefit of the inhabitants of the Commonwealth, for the increase of their commerce, and for the promotion of their safety, health, welfare, convenience, and prosperity, and as the operation and maintenance of the project by an authority created pursuant to this article will constitute the performance of essential governmental functions, the authority shall not be required to pay any taxes or assessments upon the project or any property acquired or used by the authority under the provisions of this article or upon the income therefrom; and the bonds issued under the provisions of this article, their transfer and the income therefrom, including any profit made on the sale thereof, shall at all times be free and exempt from taxation by the Commonwealth and by any municipality, county, or other political subdivision thereof.

History. 1990, c. 837.

§ 53.1-95.16. Issuance of revenue refunding bonds.

The authority is hereby authorized to provide by resolution for the issuance of its revenue refunding bonds for the purpose of refunding any bonds then outstanding which shall have been issued under the provisions of this article, including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such bonds, and, if deemed advisable by the authority, for the additional purpose of constructing enlargements, renovations, or improvements of the project. The issuance of such bonds, the maturities and other details thereof, the rights of the holders thereof, and the rights, duties, and obligations of the authority in respect of the same, shall be governed by the provisions of this article insofar as the same may be applicable.

History. 1990, c. 837.

§ 53.1-95.17. General purpose of an authority.

Without limiting the generality of any provisions of this article, the general purpose of an authority created pursuant to this article is declared to be that of acquiring, constructing, equipping, maintaining, and operating a jail or jail farm and the usual facilities appertaining to such undertakings; enlarging, renovating, and improving such facilities; acquiring the necessary property therefor, both real and personal, with the right of contract for the use of or to lease, mortgage, or sell any or all of such facilities, including real property; and doing any and all things deemed by the authority necessary, convenient, and desirable for and incident to the efficient and proper development and operation of such types of undertakings.

History. 1990, c. 837.

§ 53.1-95.18. Design-build contracts.

An authority created pursuant to this article may enter into a contract for a jail on a fixed price or not-to-exceed price design-build basis or construction management basis in accordance with procedures consistent with those described in the Virginia Public Procurement Act (§ 2.2-4300 et seq.) for procurement of nonprofessional services through competitive negotiation. The authority may authorize payment to no more than three responsive bidders who are not awarded the design-build contract if the authority determines that such payment is necessary to promote competition. The authority shall not be required to award a design-build contract to the lowest bidder but may consider price as one factor in evaluating the proposals received. The authority shall maintain adequate records to allow post-project evaluation by the Commonwealth.

History. 1990, c. 837.

§ 53.1-95.19. State reimbursement.

An authority created pursuant to this article shall be eligible to receive state reimbursement for jail construction and operation in accordance with the provisions of Article 3 (§ 53.1-80 et seq.) of this chapter. State reimbursement for the cost of the project shall be made to the authority and shall be determined as if each participating political subdivision in the authority had contributed its pro rata share of such cost. However, when an authority created pursuant to this article enters into an agreement with one or more political subdivisions not participating in the authority for the purpose of construction and operating a jail, that share of the state reimbursement due to any political subdivision not participating in the authority shall be made directly to such political subdivision in accordance with the provisions of Article 3 of this chapter. The Commonwealth shall fund the positions of superintendent, correctional officers, and two-thirds of the salaries of required medical or treatment personnel on a basis approved by the State Compensation Board. Such salaries shall be paid in the manner provided in § 15.2-1609.2 , and such section shall be applicable mutatis mutandis to such superintendent.

The superintendent of the correctional facility shall report on the first day of each month to the Director of the State Department of Corrections to give the record of each prisoner received during the preceding month on blank forms to be furnished by the Director, to state whether the offense for each prisoner is for violation of state law or of city or town ordinance. The report shall be signed by both the superintendent and chairman of the authority. Either signer found guilty of willfully falsifying the information contained in such report shall be guilty of a Class 1 misdemeanor.

If any superintendent fails to send such report within five days after the date when the report is to be forwarded, the Director shall notify the superintendent of such failure. If the superintendent fails to make the report within ten days from that date, then the Director shall cause the report to be prepared from the books of the superintendent and shall certify the cost thereof to the Comptroller. The Comptroller shall issue his warrant on the Treasurer for that amount, deducting the same from any funds that may be due the superintendent by the Commonwealth.

History. 1990, c. 837.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Editor’s note.

Section 15.2-1609.2 , which is referred to near the end of the first paragraph, is effective October 1, 1998. Until that date, the applicable statutory reference is Article 9 (§ 14.1-68 et seq.) of Chapter 1 of Title 14.1.

§ 53.1-95.20. Duty to prescribe rules and regulations.

It shall be the duty of an authority created pursuant to this article to prescribe rules and regulations, not inconsistent with standards of the State Board of Local and Regional Jails, for the operation of the project or projects constructed under the provisions of this article.

History. 1990, c. 837; 2020, c. 759.

The 2020 amendments.

The 2020 amendment by c. 759 substituted “Local and Regional Jails” for “Corrections.”

§ 53.1-95.21. Supplemental and additional powers.

The foregoing sections of this article shall be deemed to provide an additional and alternative method for the performance of acts authorized thereby, shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of any powers now existing.

History. 1990, c. 837.

§ 53.1-95.22. Liberal construction.

This article, being necessary for the welfare of the Commonwealth and its inhabitants, shall be liberally construed to effect the purposes thereof.

History. 1990, c. 837.

§ 53.1-95.23. Repealed by Acts 2015, c. 709, cl. 2.

Editor’s note.

Former § 53.1-95.23 , pertaining to severability, derived from 1990, c. 837.

§ 53.1-95.24. Inconsistent laws inapplicable.

All other general or special laws inconsistent with any provision of this article are hereby declared to be inapplicable to the provisions of this article.

History. 1990, c. 837.

Article 4. County and City Farms.

§ 53.1-96. County and city farms; persons who may be confined.

The governing body of any county or city may, within its respective jurisdiction or elsewhere, establish and maintain a farm where any person convicted and sentenced to confinement in the jail of such county or city, or sentenced to a state correctional institution, may be confined and required to do such work as may be assigned him during the term of his sentence. A local jail farm may be used to hold or confine any person who could be lawfully held or confined in a jail operated by the county or city.

The governing body or the farm board appointed to supervise and manage the farm may prescribe rules and regulations to govern the operation of the farm.

History. Code 1950, § 53-195; 1954, c. 193; 1970, c. 648; 1979, c. 700; 1982, c. 636; 2007, cc. 95, 106.

The 2007 amendments.

The 2007 amendments by cc. 95 and 106 are identical, and added the last sentence in the first paragraph.

CASE NOTES

Effect of zoning ordinance. —

Statutes authorizing the City of Richmond to establish a jail beyond its corporate limits protect the city in the performance of an extraterritorial act which might otherwise be ultra vires, but do not expressly or impliedly authorize the city to establish a penal institution at any place, inside or outside the city, in violation of the zoning ordinance of such place. City of Richmond v. Board of Supvrs., 199 Va. 679 , 101 S.E.2d 641, 1958 Va. LEXIS 112 (1958) (decided under prior law).

§ 53.1-97. Appointment of superintendent and guards.

The governing body of the county or city establishing and maintaining a farm may appoint a superintendent of the farm and necessary guards therefor who shall serve at the pleasure of the appointing authority.

History. Code 1950, § 53-197; 1982, c. 636.

§ 53.1-98. Authority of superintendent and guards.

The superintendent shall have and exercise the same control and authority over the prisoners committed or transferred to such farm as the sheriffs of the Commonwealth have by law over the prisoners committed or transferred to their jails.

During the term of their appointment the superintendent and guards are hereby invested with the powers and authority of a conservator of the peace (i) within the limits of such farm and within one mile thereof, whether such farm is situated within or beyond the limits of the political subdivision establishing and maintaining the same, and (ii) in conveying prisoners to and from such farm.

History. Code 1950, § 53-198; 1970, c. 648; 1982, c. 636.

§ 53.1-99. Jurisdiction of offenses committed by prisoners.

Whenever any farm is situated beyond the limits of the city establishing and maintaining it, the courts of such city shall have concurrent criminal jurisdiction with the courts of the county or city in which such farm, or any part thereof, is situated of all offenses committed within the boundaries of the farm by persons confined thereto.

The courts of such city shall have concurrent criminal jurisdiction with the courts of the county or city in which any of these offenses are committed: (i) escape, (ii) larceny of or willful damage or destruction of property owned by the city establishing and maintaining the farm, and (iii) offenses against the person or property of any employee of such city, if such offenses are committed en route between the farm and any other point by any person confined at the farm who is being transported thereto for confinement or being transported therefrom following confinement.

History. Code 1950, § 53-198.1; 1960, c. 286; 1982, c. 636.

§ 53.1-100. Oath and bond of superintendent and guards.

Before entering upon the duties of their office, the superintendent and guards shall take and subscribe the oath prescribed by § 49-1 . The governing body of the county or city maintaining a farm may require the superintendent or guards or both to give bond in such penalty and with such security as the governing body may prescribe, conditioned upon the faithful discharge of the duties of their offices.

History. Code 1950, § 53-199; 1982, c. 636.

§ 53.1-101. Work by prisoners.

All prisoners convicted and sentenced or transferred to a farm shall be required to work on the farm, unless for good cause shown, the court sentencing and committing such prisoners shall order otherwise.

History. Code 1950, § 53-201; 1970, c. 648; 1079, c. 700; 1982, c. 636.

§ 53.1-102. Sending prisoners to other farms.

Any county or city that has no farm may enter into an agreement with some county or city maintaining a farm to receive and work all persons liable to confinement on such terms and conditions as to the payment of board, medical expenses and clothing as may be mutually agreed upon by the two governing bodies.

History. Code 1950, § 53-202; 1982, c. 636.

§ 53.1-103. Farm expenses.

All expenses of maintaining a farm and supporting the prisoners worked thereon, including board, clothing and medical attention, shall be borne by the county or city owning the farm, except as herein otherwise provided.

History. Code 1950, § 53-204; 1982, c. 636.

§ 53.1-104. Funds from which expenses of transportation of person committed shall be paid; limitation upon cost of maintenance.

The expenses of transporting a person committed to a county or city farm from the place of conviction to the farm and of his maintenance and support during his confinement shall be paid out of state funds provided pursuant to § 53.1-85 , if the person is convicted and committed for a violation of a law of the Commonwealth, upon the order of the circuit court of the county or city operating the farm. If the person is convicted and committed for a violation of a city ordinance, such expenses shall be paid by the treasurer of the city wherein the person was convicted out of the funds of the city treasury, upon an order of the circuit court of the county or city operating the farm to the farm board of such county or city.

History. Code 1950, § 53-204.1; 1982, c. 636; 1983, c. 358.

§ 53.1-104.1. Superintendents of jail farms to make monthly reports to Director.

The superintendent of every jail farm shall report on the first day of each month to the Director, giving the record of each prisoner received during the preceding month on blank forms to be furnished by the Director, stating whether the offense of each prisoner is for violation of state law or of city or town ordinance. The report shall be signed by both the superintendent of the jail farm and the chief administrative officer of the county or city which administers the jail farm. Either signer found guilty of willfully falsifying the information contained in such report shall be guilty of a Class 1 misdemeanor.

If any superintendent fails to send such report within five days after the date when the report should be forwarded, the Director shall notify the superintendent of such failure. If the superintendent fails to make the report within ten days from that date, then the Director shall cause the report to be prepared from the books of the superintendent and shall certify the cost thereof to the Comptroller. The Comptroller shall issue his warrant on the Treasurer for that amount, deducting the same from any funds that may be due the superintendent by the Commonwealth.

History. 1983, c. 358.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Article 5. Regional Jails and Jail Farms.

§ 53.1-105. County and city regional jail or jail farm; persons who may be confined; release and transfer of prisoners.

Any combination of two or more counties or cities may establish, maintain and operate a regional jail or jail farm. Any person convicted and sentenced to confinement in the jail or jail farm of such county or city or sentenced to a state correctional facility may be confined in a regional jail farm and required to do work as may be assigned him during the term of his sentence. Any regional jail may be used to hold or confine any person who could lawfully be held or confined in a jail operated and maintained separately.

Subject to the provisions of § 53.1-113 and in the absence of private transportation arranged by the prisoner, any prisoner, after having completed a term of incarceration and upon release from a regional jail operated within Planning District Four or Planning District Five, shall be transported by such regional jail to the locality where the prisoner was arrested or convicted.

History. Code 1950, § 53-206.1; 1956, c. 681; 1970, c. 648; 1974, c. 553; 1979, c. 700; 1982, c. 636; 1999, c. 990; 2010, c. 547.

The 1999 amendment added the last paragraph.

The 2010 amendments.

The 2010 amendment by c. 547 inserted “or Planning District Five” in the last paragraph.

OPINIONS OF THE ATTORNEY GENERAL

Regional jail board membership. —

The board membership for a regional jail specified in § 53.1-106 controls over an agreement between several localities that specifies the membership of the board. The county can continue to appoint two members to serve on the Board, since the minimum requirements of subsection A of § 53.1-106 have been met. See opinion of Attorney General to The Honorable W.R. “Randy” Hamilton, Sheriff, City of Buena Vista, 10-100, 2010 Va. AG LEXIS 61 (10/22/10).

§ 53.1-106. Members of jail or jail farm board or regional jail authority; powers; payment of pro rata costs.

  1. Each regional jail or jail farm shall be supervised and managed by a board or authority to consist of at least the sheriff from each participating political subdivision, and one representative from each political subdivision participating therein who shall be appointed by the local governing body thereof. Any member of the local governing body of each participating political subdivision shall be eligible for appointment to the jail or jail farm board or regional jail authority. However, no one shall serve as a member of the board or authority who serves as an administrator or superintendent of a correctional facility supervised and managed by the board.Alternate members may be appointed to the board. Such alternate members shall be selected in the same manner as regular members, except that a sheriff may appoint his own alternate. The term of each alternate shall be determined by the sheriff or the political subdivision, whichever appointed the alternate. If a regular member is not present at a meeting of the board, the alternate for that member shall have all the voting and other rights of a regular member and shall be counted for purposes of determining a quorum at any meeting.
  2. The board shall have the power to:
    1. Establish rules and regulations governing the operation of the jail or jail farm not inconsistent with standards of the State Board of Local and Regional Jails;
    2. Purchase land for the jail or jail farm for joint ownership by the participating political subdivisions with the approval of the local governing bodies;
    3. Provide for all necessary stock, equipment and structures for the jail or jail farm within the budget approved therefor by the participating political subdivisions; and
    4. Appoint a superintendent of such jail or jail farm and necessary jail officers therefor who shall serve at the pleasure of the board.The political subdivisions establishing a regional jail or jail farm shall pay their pro rata costs for land, stock, equipment and structures.

History. Code 1950, §§ 53-206.1, 53-206.3, 53-206.4, 53-206.5; 1974, c. 553; 1979, c. 700; 1982, c. 636; 1990, c. 185; 1991, cc. 529, 566, 567, 568; 1992, cc. 212, 628; 1994, cc. 102, 270, 354; 1997, c. 340; 1998, c. 541; 2020, c. 759.

Cross references.

As to prohibition on dual office holding, see § 15.2-1535 .

Editor’s note.

Acts 1991, c. 568, cl. 2 provides that the membership of regional jail farm boards provided for by this section, regional jail authorities, and jail authorities provided for by Article 3.1 (§ 53.1-95.2 et seq.) of Chapter 3 of Title 53.1 established prior to March 25, 1991, and all actions taken by such boards and authorities prior to March 25, 1991, are hereby ratified and confirmed. For prior similar provisions see Acts 1991, c. 529, cl. 2.

The 1997 amendment, in subsection A, inserted “except as provided herein” at the end of the first sentence of the first paragraph, and in the first sentence of the second paragraph, deleted “the board shall, by majority vote, appoint” preceding “a sheriff of one” and inserted “shall be appointed by majority vote of the sheriffs of the participating subdivisions” following “a sheriff of one of the participating subdivisions.”

The 1998 amendment, in subsection A, in the first paragraph, in the first sentence, inserted “or authority” and inserted “the sheriff from each participating political subdivision, and,” and deleted “except as provided herein” following “body thereof,” in the second sentence, deleted “The sheriff and” preceding “Any member,” and in the third sentence, substituted “no one shall serve as a member of the board or authority who serves as an” for “when a participating political subdivision appoints more than one representative to a regional jail or jail farm board, the sheriff shall be appointed unless the sheriff is the”; deleted the former second paragraph relating to appointments of sheriffs to regional jail or jail farm boards; and in the present second paragraph, deleted “Political subdivisions may appoint” preceding “Alternate,” deleted “of” following “members,” and inserted “may be appointed to.”

The 2020 amendments.

The 2020 amendment by c. 759 substituted “Local and Regional Jails” for “Corrections” in subdivision B 1.

OPINIONS OF THE ATTORNEY GENERAL

Qualified law-enforcement officer under federal Act. —

A local or regional jail officer who is not part of a local police or sheriff’s department may meet the definition of a “qualified law enforcement officer” for purposes of the federal Law Enforcement Officers Safety Act of 2004. See opinion of Attorney General to Mr. Charles E. Jett, Sheriff for Stafford County, 05-026 (6/21/05).

Concealed weapons. —

A regional jail authority may generally prohibit its officers, or prohibit a particular officer, from carrying a concealed weapon absent a valid concealed handgun permit. See opinion of Attorney General to Mr. Charles E. Jett, Sheriff for Stafford County, 05-026 (6/21/05).

Execution of criminal warrants. —

Officers of a regional jail do not have the authority to execute criminal warrants in the jail. See opinion of Attorney General to The Honorable Roy F. Evans, Jr., Commonwealth’s Attorney for Smyth County, 06-005 (3/22/06).

Regional jail board membership. —

The board membership for a regional jail specified in § 53.1-106 controls over an agreement between several localities that specifies the membership of the board. The county can continue to appoint two members to serve on the Board, since the minimum requirements of subsection A of § 53.1-106 have been met. See opinion of Attorney General to The Honorable W.R. “Randy” Hamilton, Sheriff, City of Buena Vista, 10-100, 2010 Va. AG LEXIS 61 (10/22/10).

§ 53.1-106.1. Location of jail facilities.

No regional jail or jail farm board or authority created by any combination of two or more counties or cities, whether pursuant to this article or Article 3.1 (§ 53.1-95.2 et seq.) of this chapter, or an Act of Assembly, shall locate a jail or jail farm in a political subdivision which is not a participating political subdivision in the board or authority unless the governing body of the nonparticipating political subdivision grants express consent to such location.

History. 1991, c. 593.

Editor’s note.

Acts 1994, c. 260, cl. 1 provides that the second enactment of Chapter 593 of the Acts of Assembly of 1991, as amended by Chapter 206 of the Acts of Assembly of 1992, is repealed. Therefore, this section will no longer expire on July 1, 1994.

§ 53.1-107. Organization of board; annual report.

The regional jail or jail farm board shall elect a chairman and secretary.

The board shall submit annually to the participating political subdivisions a report showing its activities; a budget, which shall include all revenues, expenditures and employee compensation schedules; and other similar data.

History. Code 1950, § 53-206.4; 1956, c. 681; 1982, c. 636.

§ 53.1-108. Expenses and allowance.

Members of the regional jail or jail farm board shall be entitled to necessary expenses incurred in attending meetings of the board. They shall each receive an allowance for each day they are in attendance on the board. Such expenses and allowances shall not exceed in any one year the sum of $1,200 per member and shall be paid by the respective governing bodies.

History. Code 1950, § 53-206.3; 1956, c. 681; 1970, c. 648; 1982, c. 636; 1986, c. 191.

§ 53.1-109. Authority of jail superintendent and jail officers; fees charged to prisoner.

The jail superintendent shall have and exercise the same control and authority over the prisoners committed or transferred to a regional jail or jail farm as the sheriffs of this Commonwealth have by law over the prisoners committed or transferred to local jails.

During the term of their appointment the superintendent and jail officers are hereby invested with the powers and authority of a conservator of the peace (i) within the limits of such jail or jail farm and within one mile thereof, whether such jail or jail farm is situated within or beyond the limits of such political subdivisions establishing and maintaining the same; (ii) for the purpose of conveying prisoners to and from such jail or jail farm; (iii) for the purpose of enforcing the provisions of alternative incarceration or treatment programs pursuant to §§ 53.1-129 , 53.1-131 , and 53.1-131 .2; (iv) for the purpose of providing security and supervision of prisoners taken to a medical, dental, or psychiatric facility; and (v) for the purpose of providing a security escort and supervision of prisoners transported to a funeral or graveside service. Prisoners may be charged reasonable fees for services described in clause (v).

History. Code 1950, § 53-206.6; 1956, c. 681; 1970, c. 648; 1982, c. 636; 1991, c. 383; 1994, cc. 923, 953; 1999, cc. 829, 846; 2002, c. 336; 2004, c. 378.

The 1999 amendments.

The 1999 amendments by cc. 829 and 846 are identical, and substituted “Article 1 (§ 19.2-119 et seq.) of Chapter 9 of Title 19.2” for “§ 19.2-123 ” in clause (iii) of the second paragraph.

The 2002 amendments.

The 2002 amendment by c. 336 added the last sentence of the second paragraph.

The 2004 amendments.

The 2004 amendment by c. 378 deleted “and pretrial supervision programs operated pursuant to Article 1 (§ 19.2-119 et seq.) of Chapter 9 of Title 19.2” following “53.1-131.2” in clause (iii) in the last paragraph.

§ 53.1-109.01. Authority for regional jail officers to carry weapons.

It shall be lawful for any regional jail officer who has been designated by the superintendent, and who has completed the basic course in firearms for jailers and custodial officers pursuant to subdivision 7 of § 9.1-102 , to carry and use sufficient weapons to prevent escapes, suppress rebellion, and defend or protect himself or others in the course of his assigned duties.

History. 1999, c. 131.

§ 53.1-109.1. Handling of funds for regional jail or jail farm; county or city treasurer or director of finance as fiscal agent.

Any regional jail or jail farm constituted pursuant to the provisions of this article may appoint as its fiscal agent the treasurer of a county or city which is a member of the board of the jail or jail farm, or in a member jurisdiction where there is no treasurer, the director of finance. No treasurer or director of finance shall be appointed fiscal agent without their concurrence. In the event such treasurer or director of finance is appointed, all disbursements on behalf of the jail or jail farm shall be by warrant signed by the chairman of the board of the jail or jail farm or his designee and countersigned by such treasurer or director of finance as fiscal agent. For his services as fiscal agent, a treasurer or director of finance thus appointed may be paid such salary supplement and reimbursed such expenses as may be agreed upon by the board of the jail or jail farm and the treasurer or director of finance. Such salary supplement and expenses shall be borne exclusively by the regional jail or jail farm and not by the Compensation Board.

History. 1996, c. 623.

CIRCUIT COURT OPINIONS

Demurrer granted. —

In a case in which the county published a request for proposals for healthcare services for the inmates of the jail pursuant to the Virginia Public Procurement Act, the court granted the county’s and the jail authority’s second demurrer as the county could not be held liable as the jail authority’s fiscal agent because plaintiff’s amended complaint did not allege that the county was acting outside the scope of its agency and/or for its own benefit. Mediko, P.C. v. Roanoke Cty., 100 Va. Cir. 323, 2018 Va. Cir. LEXIS 623 (Roanoke County Nov. 9, 2018).

§ 53.1-109.2. Regional jail superintendents not to be interested in private corrections enterprises.

No regional jail superintendent shall also serve as an officer or partner of, or derive any personal benefit from, any private corrections enterprise or private corrections corporation doing business in the Commonwealth. However, nothing in this section shall prohibit any regional jail superintendent from providing consultation services for remuneration to any public entity regarding correctional matters, or from receiving pension, deferred compensation or other retirement benefits arising exclusively out of employment by a private corrections enterprise or private corrections corporation prior to appointment as superintendent.

History. 1996, c. 623.

§ 53.1-110. Oath and bond of superintendent and jail officers.

Before entering upon the duties of their office the superintendent and jail officers shall take and subscribe the oath prescribed by § 49-1 . The board shall require the superintendent and jail officers to participate in the blanket surety bond plan for state and local employees established in § 2.2-1840 .

History. Code 1950, § 53-206.7; 1956, c. 681; 1982, c. 636; 1991, c. 383; 1995, c. 5.

§ 53.1-111. Work of prisoners.

All prisoners convicted and sentenced or transferred to a jail or jail farm shall be required to work on the jail or jail farm or on any other property as the board may direct, unless for good cause shown the court sentencing and committing such prisoners shall order otherwise.

History. Code 1950, § 53-206.8; 1956, c. 681; 1970, c. 648; 1979, c. 700; 1982, c. 636.

§ 53.1-112. Jail or jail farm expenses.

Except as provided in § 53.1-114 , the expenses of operating and maintaining a jail or jail farm and supporting the prisoners working thereon, including board, clothing and medical attention, shall be borne by the participating political subdivisions. Such participation shall be based on the percentage of the total cost for such operation that the number of prisoner days bears to the total number of prisoner days confined therein, plus their proportionate part of the fixed cost for such maintenance and operation.

History. Code 1950, § 53-206.9; 1956, c. 681; 1968, c. 525; 1982, c. 636.

§ 53.1-113. Transportation of prisoners to jail or jail farm.

Except as provided in § 53.1-114 , each political subdivision participating in a jail or jail farm shall bear the cost of transporting its prisoners to and from the jail or jail farm.

History. Code 1950, § 53-206.10; 1956, c. 681; 1968, c. 525; 1982, c. 636.

§ 53.1-114. Reimbursement of costs.

Counties and cities or any combination thereof operating a regional jail or jail farm shall be paid the reasonable cost of maintaining the facility as provided for in § 53.1-85 .

History. Code 1950, § 53-206.11; 1956, c. 681; 1968, c. 525; 1982, c. 636.

§ 53.1-115. Payment of salaries of superintendents and medical and treatment personnel.

The Commonwealth shall pay two-thirds of the salaries of the superintendents and approved medical and treatment personnel of such jails. The other one-third shall be paid pro rata by the participating political subdivisions. Such salaries shall be paid in the manner provided in § 15.2-1609.2 , and such section shall be applicable mutatis mutandis to superintendents of such jails.

History. Code 1950, § 53-206.12; 1970, c. 706; 1982, c. 636; 1983, c. 358.

§ 53.1-115.1. Superintendents of regional jails and regional jail-farms to make daily reports to Compensation Board.

The superintendent of every regional jail and every regional jail-farm shall report each day to the Compensation Board, giving the record of each prisoner received during the preceding day in an electronic format approved by the Compensation Board, stating whether the offense for each prisoner is for violation of state law or of a city or town ordinance. The computer-generated report shall be authenticated by both the superintendent and chairman of the regional jail-farm board. Either person who authenticates such report and willfully falsifies the information contained in such report is guilty of a Class 1 misdemeanor.

If any superintendent fails to send such report, the Compensation Board shall notify the superintendent of such failure. If the superintendent fails to make the report within ten days, then the Compensation Board shall cause the report to be prepared from the books of the superintendent and shall certify the cost thereof to the Comptroller. The Comptroller shall issue his warrant on the Treasurer for that amount, deducting the same from any funds that may be due the superintendent by the Commonwealth.

History. 1983, c. 358; 2000, cc. 70, 291; 2006, cc. 857, 914.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2000 amendments.

The 2000 amendments by cc. 70 and 291 are identical, and substituted “Compensation Board” for “Director” throughout the section; and substituted “ten business days” for “five days” in the first sentence of the second paragraph.

The 2006 amendments.

The 2006 amendments by cc. 857 and 914, effective October 1, 2006, are nearly identical, and in the first paragraph, substituted “each” for “on the first,” deleted “of each month” after “each day,” and substituted “day in an electronic format approved” for “month on blank forms to be furnished” in the first sentence, in the second sentence inserted “computer generated” near the beginning of the sentence and substituted “authenticated” for “signed,” and in the third sentence substituted “person who authenticates such report and” for “signer found guilty,” “falsifies” for “falsified,” and “is” for “shall be”; and in the second paragraph deleted “within ten business days after the date when the report should be forwarded” after “report” in the first sentence, and deleted “from that date” after “ten days” in the second sentence.

§ 53.1-115.2. Establishment of stores in regional jails and regional jail farms.

The superintendent of a regional jail or regional jail farm may, with the approval of the governing regional jail or jail farm board or jail authority, provide for the establishment and operation of stores or commissaries in regional jail or regional jail farm facilities to deal in such articles as he deems proper. The net profits from the operation of such stores shall be used within each facility respectively for educational, recreational, or other beneficial purposes as may be prescribed by the superintendent.

History. 1992, c. 185.

Article 6. Duties of Sheriffs.

§ 53.1-116. What records and policy jailer shall keep; how time deducted or added for felons and misdemeanants; payment of fine and costs by person committed to jail until he pays.

  1. The jailer shall keep a (i) record describing each person committed to jail, the terms of confinement, for what offense or cause he was committed, and when received into jail; (ii) record of each prisoner; and (iii) written policy stating the criteria for and conditions of earned credit in the facility and the revocation of such credit.Unless he is serving a mandatory minimum sentence of confinement, each prisoner sentenced to 12 months or less for a misdemeanor or any combination of misdemeanors shall earn good conduct credit at the rate of one day for each one day served, including all days served while confined in jail prior to conviction and sentencing, in which the prisoner has not violated the written rules and regulations of the jail.Prisoners eligible for parole under § 53.1-151 , 53.1-152 or 53.1-153 shall earn good conduct credit at a rate of 15 days for each 30 days served with satisfactory conduct.The jailer may grant the prisoner additional credits for performance of institutional work assignments, participation in classes, or participation in local work force programs, if available at the facility, at the rate of five days for every 30 days served. The time so deducted shall be allowed to each prisoner for such time as he is confined in jail. It shall be the responsibility of the jailer in each facility to determine the manner in which these additional credits may be awarded and to include this information in the written policy mandated by clause (iii) of this subsection.For each violation of the rules prescribed herein, the time so deducted shall be added until it equals the full sentence imposed upon the prisoner by the court.However, any prisoner committed to jail upon a felony offense committed on or after January 1, 1995, shall not earn good conduct credit, sentence credit, earned sentence credit, other credit, or a combination of any credits in excess of that permissible under Article 4 (§ 53.1-202.2 et seq.) of Chapter 6 of this title. So much of an order of any court contrary to the provisions of this section shall be deemed null and void.
  2. Notwithstanding the provisions of § 19.2-350 , in the event a person who was committed to jail to be therein confined until he pays a fine imposed on him by the court in which he was tried should desire to pay such fine and costs, he may pay the same to the person in charge of the jail. The person receiving such moneys shall execute and deliver an official receipt therefor and shall promptly transmit the amount so paid to the clerk of the court which imposed the fine and costs. Such clerk shall give him an official receipt therefor and shall properly record the receipt of such moneys.
  3. The administrator of a local or regional jail shall not assign a person to a home/electronic incarceration program pursuant to subsection C of § 53.1-131.2 in a locality which has a jail operated by a sheriff, without the consent of the sheriff.

History. Code 1950, § 53-151; 1952, c. 218; 1972, c. 293; 1981, c. 278; 1982, c. 636; 1983, c. 561; 1984, c. 643; 1990, c. 934; 1994, 2nd Sp. Sess., cc. 1, 2; 1996, c. 556; 1998, c. 776; 1999, cc. 951, 1007; 2003, cc. 818, 820; 2004, cc. 400, 461; 2011, c. 491.

Cross references.

As to earned sentence credits during furloughs, see §§ 53.1-37 and 53.1-132 .

The 1998 amendment added subsection C.

The 1999 amendments.

The 1999 amendments by cc. 951 and 1007 are identical, and in subsection A, deleted “however, any prisoner committed to jail upon a felony offense committed on or after January 1, 1995, shall not earn any good conduct credit except as hereinafter provided” following “imposed by law” in the third sentence, and added the present next-to-last sentence.

The 2003 amendments.

The 2003 amendments by cc. 818 and 820 are identical, and in subsection A, divided the former single paragraph into four paragraphs; combined the former first two sentences of the first paragraph into one sentence and in that sentence inserted the clause (i) designation, substituted “(ii)” for “The jailer shall keep a,” added “and” at the end of clause (ii), and added clause (iii); substituted “prisoner sentenced to 12 months or less for a misdemeanor or any combination of misdemeanors shall” for “prisoner not eligible for parole under §§ 53.1-151 , 53.1-152 or § 53.1-153 shall” and substituted “15” for “fifteen” and “30” for “thirty” in the present second paragraph; and deleted “established under § 53.1-128 ” following “work force program” and substituted “30” for “thirty” in the first sentence of the third paragraph.

The 2004 amendments.

The 2004 amendment by c. 400, in subsection A, in the third paragraph, substituted “credits” for “credit,” inserted “participation in classes,” and substituted “local work force programs, if available at the facility” for “a local work force program” in the first sentence and added the last sentence.

The 2004 amendment by c. 461, in subsection A, in the first sentence of the second paragraph, added “Unless he is serving a mandatory minimum sentence of confinement” at the beginning and deleted “unless a mandatory minimum sentence is imposed by law” at the end.

The 2011 amendments.

The 2011 amendment by c. 491 in subsection A, added “and the revocation of such credit” in the first paragraph, and made minor stylistic changes in the third paragraph.

Law Review.

For survey of the law in the Fourth Circuit on habeas corpus and prisoner’s rights, see 34 Wash. & Lee L. Rev. 625 (1977).

Michie’s Jurisprudence.

For related discussion, see 5B M.J. Criminal Procedure, §§ 83, 92.

CASE NOTES

Eligibility to earn good conduct credit prior to conviction and sentencing. —

Because eligibility for parole cannot be determined until after the time of conviction and sentencing, petitioners did not qualify before that time as “prisoner[s] not eligible for parole” within the meaning of this section as it then read, and, therefore, were not eligible to earn good conduct credit pursuant to the said section at the rate of one day for each one day served while confined in jail prior to conviction and sentencing. Valentine v. Warden of Bland Correctional Ctr., 247 Va. 1 , 438 S.E.2d 761, 10 Va. Law Rep. 612, 1993 Va. LEXIS 161 (1993).

Use of habeas in challenging withholding of good conduct credits. —

A writ of habeas corpus is the proper vehicle for challenging the length of confinement resulting from good conduct credits being withheld. Hill v. Hutto, 537 F. Supp. 1185, 1982 U.S. Dist. LEXIS 12085 (E.D. Va. 1982) (decided under prior law).

CIRCUIT COURT OPINIONS

Determination of sentencing credits. —

Jailer of all local correctional facilities was designated as the repository for all of the information needed to determine sentence credits; the court was without jurisdiction to determine the issue of defendant’s claimed sentence credit, as this decision rested solely within the discretion of the Department of Corrections and its designees. Commonwealth v. Bertini, 68 Va. Cir. 255, 2005 Va. Cir. LEXIS 118 (Fairfax County July 15, 2005).

Unused jail credit applied to sentence. —

Section 53.1-187 required that the days of unused jail credit be applied to defendant’s sentence arising out of a detainer from another county, notwithstanding the sheriff’s policy of reserving unused jail credit for potential future revocations, because the statute only required jail credit on the offense for which defendant was awaiting trial. Commonwealth v. Carter, 93 Va. Cir. 129, 2016 Va. Cir. LEXIS 42 (Fairfax County Apr. 4, 2016).

OPINIONS OF THE ATTORNEY GENERAL

Because § 53.1-116 applies solely to prisoners serving criminal sentences,

the sheriff or jail superintendent responsible for determining the length of a jail inmate’s term of confinement must ascertain whether the individual is being detained pursuant to a civil or a criminal contempt finding and award only those prisoners serving criminal contempt sentences good conduct credits. See opinion of Attorney General to The Honorable E. Stuart Kitchen, Jr., Sheriff for Sussex County, 04-005 (3/3/04).

Good conduct credit. —

Prisoner charged as a juvenile but sentenced under § 16.1-284 is eligible for the good conduct credit established in § 53.1-116 if the offense for which he is being sentenced would be classified as a misdemeanor if committed by an adult. However, if the offense for which he is being sentenced would be classified as a felony if committed by an adult, the good conduct credit established in § 53.1-116 does not apply. If the prisoner is sentenced for violating a court order or the terms of probation or parole, the nature of the underlying conviction (felony or misdemeanor) governs eligibility for good conduct credit. See opinion of Attorney General to The Honorable Robert L. Bushnell, Judge, Juvenile and Domestic Relations District Court, City of Martinsville and Counties of Henry and Patrick, 14-016, 2014 Va. AG LEXIS 21 (7/10/14).

§ 53.1-116.1. Jailer to give notice of release of certain prisoners.

  1. Prior to the release or discharge of any prisoner for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, the sheriff, jail superintendent or other jail administrator shall give notice to the prisoner of his duty to register with the State Police. A person required to register shall register, submit to be photographed as part of the registration, and provide information regarding place of employment, if available, to the sheriff, jail superintendent or other jail administrator. The sheriff, jail superintendent or other jail administrator shall also obtain from that person all necessary registration information, including fingerprints and photographs of a type and kind approved by the Department of State Police; inform the person of his duties regarding reregistration and change of address; and inform the person of his duty to register. The sheriff, jail superintendent or other jail administrator shall forthwith forward the registration information to the Department of State Police on the date of the prisoner’s release.
  2. Whenever a person required to register has failed to comply with the provisions of subsection A, the sheriff, jail superintendent or other jail administrator shall promptly investigate or request the State Police to promptly investigate and, if there is probable cause to believe a violation has occurred, obtain a warrant or assist in obtaining an indictment charging a violation of § 18.2-472.1 in the jurisdiction in which the person was discharged. The sheriff, jail superintendent or other jail administrator shall notify the State Police forthwith of such actions taken pursuant to this section.
  3. The sheriff, jail superintendent, or other jail administrator shall notify the State Police immediately upon discovering the escape of any prisoner for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1.

History. 1994, c. 362; 1997, c. 747; 2003, c. 584; 2006, cc. 857, 914; 2010, c. 858.

Cross references.

For regulations governing the operation and maintenance of the sex offender and crimes against minors registry, see 19 VAC 30-170-15 et seq.

Editor’s note.

Acts 1997, c. 747, cl. 2, provided: “That, prior to July 1, 1997, or as soon thereafter as is reasonably practicable, the Department of State Police shall promulgate regulations consistent with and necessary for implementation of the requirements of this act and 42 U.S.C. § 14071.”

The 1997 amendment substituted “an offense for which registration is required as defined in § 19.2-298.1 ” for “a felony in violation of §§ 18.2-61 , 18.2-63 , 18.2-64.1 , 18.2-67.1 , 18.2-67.2 , 18.2-67.3 , 18.2-67.5 , 18.2-370 or § 18.2-370.1 or, where the victim is a minor or is physically helpless or mentally incapacitated as defined in § 18.2-67.10 , subsection B of § 18.2-361 and subsection B of § 18.2-366 ” in the first sentence and added the last two sentences.

The 2003 amendments.

The 2003 amendment by c. 584, in the first sentence, substituted “sentence for an offense for which registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1” for “sentence upon a conviction of an offense for which registration is required as defined in § 19.2-298.1 ,” and deleted “in accordance with § 19.2-298.1 ” at the end of that sentence, and deleted “under this section” at the end of the next-to-last sentence.

The 2006 amendments.

The 2006 amendments by cc. 857 and 914 are identical, and inserted the A designation at the beginning of the first paragraph and in subsection A substituted “for whom” for “serving a sentence for an offense for which” in the first sentence, added the second sentence, and substituted “on the date of the prisoner’s release” for “within seven days of receipt” at the end of the last sentence; and added subsection B.

The 2010 amendments.

The 2010 amendment by c. 858 added subsection C.

§ 53.1-116.1:01. Jailer to give notice of intake of certain prisoners.

  1. At the time of intake of any prisoner, for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, the sheriff, jail superintendent or other jail administrator shall also obtain from that person all necessary registration information, including fingerprints and photographs of a type and kind approved by the Department of State Police. A person required to register shall register, and submit to be photographed as part of the registration. The sheriff, jail superintendent or other jail administrator shall forthwith forward the registration information to the Department of State Police on the date of the prisoner’s intake.
  2. Whenever a person required to register has failed to comply with the provisions of subsection A, the sheriff, jail superintendent or other jail administrator shall promptly investigate or request the State Police promptly investigate and, if there is probable cause to believe a violation has occurred, obtain a warrant or assist in obtaining an indictment charging a violation of § 18.2-472.1 in the jurisdiction in which the person was discharged. The sheriff, jail superintendent or other jail administrator shall notify the State Police forthwith of such actions taken pursuant to this section.

History. 2006, cc. 857, 914.

§ 53.1-116.1:02. Jailer-issued identification.

Prior to the release or discharge of any prisoner who has been confined for at least 90 days and does not possess a government-issued identification card, birth certificate, and Social Security card, the sheriff, jail superintendent, or other jail administrator shall provide the assistance necessary for such prisoner to apply for and obtain such identification and documents prior to his release or discharge, provided that the sheriff, superintendent, or administrator has or can readily obtain all records and information necessary for their issuance and the prisoner has not declined an offer by the sheriff, superintendent, or administrator to provide such assistance. If the sheriff, jail superintendent, or other jail administrator receives a government-issued identification card, birth certificate, or Social Security card for a prisoner after his release or discharge, the sheriff, superintendent, or administrator shall make reasonable efforts to ensure that the prisoner obtains possession of such identification or document. The sheriff, jail superintendent, or other jail administrator may establish a procedure for securing such identification through the Department of Motor Vehicles. Unless the prisoner has funds in his account to cover all or part of the costs and fees associated with applying for and obtaining any identification or documents pursuant to this section, such costs shall be paid by the jail.

History. 2010, c. 856; 2020, cc. 484, 523.

The 2020 amendments.

The 2020 amendments by cc. 484 and 523 are identical, and rewrote the section, which read, “Prior to the release or discharge of any prisoner, if the prisoner does not already possess a government-issued identification card, the sheriff, jail superintendent, or other jail administrator may issue that prisoner a special identification card to be given to the prisoner upon his release. The sheriff, jail superintendent, or other jail administrator may establish a procedure for securing such identification through the Department of Motor Vehicles. All costs and fees associated with obtaining such special identification card shall be paid by the prisoner.”

§ 53.1-116.2. Sheriffs to be keepers of jails.

The sheriff of each county or city shall be the keeper of the jail thereof unless that locality is a member of a jail or jail farm board or regional jail authority, in which case the provisions of § 53.1-106 shall apply.

History. 1994, c. 491.

The number of this section was assigned by the Virginia Code Commission, the number in the 1994 act having been 53.1-116.1 .

Editor’s note.

Acts 1994, c. 491, cl. 2 provides that the provisions of this act are declaratory of existing law.

OPINIONS OF THE ATTORNEY GENERAL

Security at public facility operated by community services board. —

A sheriff may assign a deputy to provide full-time security at a public facility operated by a community services board, such as a program for students that is operated by a community services board in cooperation with a local public school system. See opinion of Attorney General to Lucy E. Phillips, Esquire, Washington County Attorney, 17-012, 2017 Va. AG LEXIS 25 (11/16/17).

§ 53.1-116.3. Improper release; capias, arrest and hearing.

The sheriff or jail superintendent or his designee, upon the discovery of an improper release or discharge of a prisoner from custody, shall report such release or discharge to the sentencing court. The court shall then for good cause shown issue a capias for the arrest of the prisoner which may be executed by any duly sworn jail officer or law-enforcement officer. Such capias shall direct that the prisoner be presented forthwith to the court to determine the propriety of the original discharge or release. After a hearing, if the court is satisfied that the original release or discharge was made improperly, the prisoner shall be returned to the jail facility from which he was released or discharged.

History. 1997, c. 127.

Michie’s Jurisprudence.

For related discussion, see 14B M.J. Prisons and Prisoners, § 5.

§ 53.1-117. Violations of rules to be recorded in register.

Every time any prisoner in jail is guilty of a violation of the rules so prescribed, the name of the prisoner, the rules which he has violated and the time when each violation occurred shall be recorded in a register provided for that purpose.

History. Code 1950, § 53-152; 1982, c. 636.

§ 53.1-118. Courts to fine sheriffs for failure to perform duties.

If it appears to the circuit court having jurisdiction that the sheriff or jail superintendent has in any respect failed to perform his duties with respect to the operation of the jail, the court may, after summoning him to show cause against it, summarily fine him not more than fifty dollars.

History. Code 1950, § 53-161; 1970, c. 648; 1982, c. 636; 1991, c. 383.

§ 53.1-119. Court duties of sheriff.

The sheriff shall provide officers to attend the courts within his jurisdiction while such courts are in session as the respective judges may require. The sheriff, or the superintendent of a regional jail or jail farm, shall receive into the jail facility all persons committed by the order of such courts, or under process issuing therefrom, and all persons committed by any other lawful authority.

History. Code 1950, § 53-162; 1982, c. 636; 1995, c. 112.

CASE NOTES

Sheriff responsible for day to day operations of jail. —

Once a county or city elects to operate a local jail, as opposed to a regional jail, then responsibility for day to day operations of the jail falls to the sheriff; the sheriff is required to “receive into the jail” all persons lawfully committed. May v. Newhart, 822 F. Supp. 1233, 1993 U.S. Dist. LEXIS 7983 (E.D. Va. 1993).

City’s liability for sheriff’s policies. —

Where citizens have delegated final policymaking decisions in operating jail to sheriff, the city could be liable for his policies relating to allegations that sheriff failed to provide adequate medical care for plaintiff prisoner where they violated constitutional standards. May v. Newhart, 822 F. Supp. 1233, 1993 U.S. Dist. LEXIS 7983 (E.D. Va. 1993).

§ 53.1-120. Sheriff to provide for courthouse and courtroom security; designation of deputies for such purpose; assessment.

  1. Each sheriff shall ensure that the courthouses and courtrooms within his jurisdiction are secure from violence and disruption and shall designate deputies for this purpose. A list of such designations shall be forwarded to the Director of the Department of Criminal Justice Services.
  2. The chief circuit court judge, the chief general district court judge and the chief juvenile and domestic relations district court judge shall be responsible by agreement with the sheriff of the jurisdiction for the designation of courtroom security deputies for their respective courts. If the respective chief judges and sheriff are unable to agree on the number, type and working schedules of courtroom security deputies for the court, the matter shall be referred to the Compensation Board for resolution in accordance with existing budgeted funds and personnel.
  3. The sheriff shall have the sole responsibility for the identity of the deputies designated for courtroom security.
  4. Any county or city, through its governing body, may assess a sum not in excess of $20 as part of the costs in each criminal or traffic case in its district or circuit court in which the defendant is convicted of a violation of any statute or ordinance. If a town provides court facilities for a county, the governing body of the county shall return to the town a portion of the assessments collected based on the number of criminal and traffic cases originating and heard in the town. The imposition of such assessment shall be by ordinance of the governing body that may provide for different sums in the circuit courts and district courts. The assessment shall be collected by the clerk of the court in which the case is heard, remitted to the treasurer of the appropriate county or city and held by such treasurer to be appropriated by the governing body to the sheriff’s office. The assessment shall be used solely for the funding of courthouse security personnel, and, if requested by the sheriff, equipment and other personal property used in connection with courthouse security.

History. Code 1950, § 53-168.1; 1972, c. 135; 1982, c. 636; 1986, c. 568; 1988, c. 119; 1989, c. 571; 2002, cc. 533, 756; 2003, cc. 26, 44; 2004, cc. 390, 432; 2006, c. 495; 2007, c. 377; 2020, c. 602.

Cross references.

As to establishment of training standards for courtroom security by the Department of Criminal Justice Services, see § 9.1-102 .

As to compliance with minimum training standards, see § 9.1-113 .

Editor’s note.

Acts 1992, c. 893, Item 69 D, as amended by Acts 1994, c. 965, Item 69 D, and Acts 1994, c. 966, Item 82 D, provides that notwithstanding the provisions of this section, or any other section of the Code of Virginia, unless a judge provides the sheriff with a written order stating that a substantial security risk exists in a particular case, no courtroom security deputies may be ordered for civil cases, not more than one deputy may be ordered for criminal cases in a district court, and not more than two deputies may be ordered for criminal cases in a circuit court. In complying with such orders for additional security, the sheriff may consider other deputies present in the courtroom as part of his security force.

Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, “if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly.” The funding was not provided.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 68 C, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of § 53.1-120 , or any other section of the Code of Virginia, unless a judge provides the sheriff with a written order stating that a substantial security risk exists in a particular case, no courtroom security deputies may be ordered for civil cases, not more than one deputy may be ordered for criminal cases in a district court, and not more than two deputies may be ordered for criminal cases in a circuit court. In complying with such orders for additional security, the sheriff may consider other deputies present in the courtroom as part of his security force.”

The 2002 amendments.

The 2002 amendments by cc. 533 and 756 added “assessment” at the end of the section catchline; and in the first sentence in subsection A, deleted “designate deputies who shall” following “Each sheriff shall” and added “and shall designate deputies for this purpose” at the end. Chapter 756 also added subsection D.

The 2003 amendments.

The 2003 amendments by cc. 26 and 44 are identical, and in subsection D, substituted “$5” for “five dollars” in the first sentence, and deleted the former last sentence, which read: “The provisions of this subsection shall expire on July 1, 2004.”

The 2004 amendments.

The 2004 amendments by cc. 390 and 432 are identical, and added the language beginning “and, if requested by the sheriff” at the end of the last sentence in subsection D.

The 2006 amendments.

The 2006 amendment by c. 495, in subsection D, divided the former last sentence into two sentences by substituting “to be appropriated” for “subject to appropriation” in the fourth sentence and inserting “The assessment shall be used solely” at the beginning of the fifth sentence.

The 2007 amendments.

The 2007 amendment by c. 377 substituted “$10” for “$5” in the first sentence of subsection D.

The 2020 amendments.

The 2020 amendment by c. 602 substituted “$20” for “$10” in subsection D in the first sentence.

Michie’s Jurisprudence.

For related discussion, see 19 M.J. Trial, § 3.

CASE NOTES

Judge’s authority pertaining to courtroom security. —

Trial court did not err in finding defendant in civil and criminal contempt for defendant’s conduct in his capacity as a sheriff in removing a deputy from security at the entrance to a courthouse; defendant’s conduct was in direct violation of the trial court’s order and even though § 17.1-513 may not have permitted the trial court the jurisdiction to find defendant in contempt, other statutes, such § 53.1-120 , gave the trial court authority to provide for both courtroom and courthouse security. Epps v. Commonwealth, 47 Va. App. 687, 626 S.E.2d 912, 2006 Va. App. LEXIS 102 (2006), aff'd, 273 Va. 410 , 641 S.E.2d 77, 2007 Va. LEXIS 35 (2007).

OPINIONS OF THE ATTORNEY GENERAL

A local sheriff is not required to provide more than one deputy sheriff to the general district court for courtroom security

in the absence of an order stating that a particular case presents a substantial security risk. See opinion of Attorney General to The Honorable Paula N. Wyatt, Sheriff for the City of Hopewell, 02-016 (2/20/02).

Judge’s authority pertaining to courtroom security. —

A district court judge may designate the number, type, and working schedules of courtroom security deputies only by agreement with the sheriff and then only within the parameters established by the relevant appropriation act; for cases presenting substantial security risks, a judge may order a sheriff to provide additional security, but may not designate the specific personnel. See opinion of Attorney General to The Honorable Robert J. McCabe, Sheriff for the City of Norfolk, 04-072 (10/7/04).

While the chief judge and, collectively, the judges of a judicial circuit, do possess legal authority to establish rules regarding courthouse security, such power may not be delegated to a circuit court administrator. The chief judge and, collectively, the circuit judges, possess the legal authority to establish a general rule that cellular telephones are permitted in the courthouse. Nonetheless, the sheriff possesses the legal authority to take action in any specific instance in which a cellular telephone causes a disturbance, or otherwise endangers public safety within the courthouse. See opinion of Attorney General to the Honorable William O. Watson, Sheriff, City of Portsmouth, 12-065, 2013 Va. AG LEXIS 48 (7/12/13).

Fees assessed for courtroom security,

which are subsequently appropriated by the governing body to the sheriff’s office, may only be used to compensate a deputy sheriff’s salary for the time actually spent performing duties related to courthouse security and to fund equipment and other personal property related to courthouse security. See opinion of Attorney General to Mr. Franklin P. Slavin, Jr., County Attorney for Bland County, 04-077 (10/19/04).

Courthouse security. —

While judges and sheriffs should work together to resolve any issues or concerns about courthouse security, judges retain rule-making authority over courthouse security, and the sheriff is responsible for enforcing the rules and responding to any security threats or disturbances. See opinion of Attorney General to The Honorable Paul W. Higgs, Sheriff, City of Fredericksburg, 13-096, 2013 Va. AG LEXIS 93 (12/3/3).

Local funding of sheriffs’ offices. —

This statute allows, but does not require, a locality to assess a fee for funding courthouse security. If a locality assesses this fee, the proceeds must be appropriated to the sheriff for use in supporting courthouse security. This statute does not authorize revenue from the fee to be used to “credit” or offset funds a locality is required to pay a sheriff for other purposes. See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, No. 15-010, 2015 Va. AG LEXIS 22 (7/24/15).

Security at public facility operated by community services board. —

A sheriff may assign a deputy to provide full-time security at a public facility operated by a community services board, such as a program for students that is operated by a community services board in cooperation with a local public school system. See opinion of Attorney General to Lucy E. Phillips, Esquire, Washington County Attorney, 17-012, 2017 Va. AG LEXIS 25 (11/16/17).

§ 53.1-121. Sheriffs to make daily reports to Compensation Board; failure to send report.

The sheriff shall report each day to the Compensation Board, giving the record of each prisoner received during the preceding day in an electronic format approved by the Compensation Board, stating whether the offense is for violation of state law or of city or town ordinance.

If any sheriff fails to send such report, the Compensation Board shall notify the sheriff of such failure. If the sheriff fails to make the report within ten days, then the Compensation Board shall cause the report to be prepared from the books of the sheriff and shall certify the cost thereof to the Comptroller. The Comptroller shall issue his warrant on the Treasurer for that amount, deducting the same from any funds that may be due the sheriff by the Commonwealth.

The computer-generated report shall be authenticated by both the chief jailer and the sheriff who shall certify the accuracy of the report. Either authenticator found guilty of willfully falsifying the information contained in such report shall be guilty of a Class 1 misdemeanor.

History. Code 1950, § 53-169; 1972, c. 573; 1982, c. 636; 1983, c. 358; 1996, c. 288; 1998, cc. 204, 350; 2006, cc. 857, 914.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 1998 amendments.

The 1998 amendments by cc. 204 and 350 are identical, and in the second paragraph, in the first sentence, substituted “ten business days” for “five days.”

The 2006 amendments.

The 2006 amendments by cc. 857 and 914, effective October 1, 2006, are identical, and in the first paragraph, substituted “each” for “on the first,” deleted “of each month” after “day,” and substituted “day in an electronic format approved” for “month on blank forms to be furnished” in the first sentence; in the second paragraph deleted “within ten business days after the date when the report should be forwarded” after “such report” in the first sentence, and deleted “from that date” after “ten days” in the second sentence; and in the third paragraph added “computer-generated” and substituted “authenticated” for “signed” in the first sentence, and substituted “authenticator” for “signer” in the second sentence.

CASE NOTES

Duty owed to prisoner by Director. —

The Director of the Department of Corrections has a general duty to oversee the enforcement of the laws and regulations governing penal institutions within the Commonwealth and to oversee the supervision of the same. Thus, he owed a duty to plaintiff, a prisoner, which, if violated in the manner alleged, may have contributed to the injuries said to have been sustained. Payne v. Rollings, 402 F. Supp. 1225, 1975 U.S. Dist. LEXIS 15913 (E.D. Va. 1975) (decided under prior law).

§ 53.1-122. Daily records of sheriffs and jail superintendents.

Each sheriff and jail superintendent shall keep a daily record showing the total number of prisoners confined in the jail of his county or city, the number of prisoners admitted, the number released and the time of each such admittance and release. Such records shall show such information separately as to the prisoners of the Commonwealth, of each county, city or town, of the United States, and of any other state or country.

History. Code 1950, § 53-170; 1982, c. 636; 1991, c. 383.

§ 53.1-123. Other accounts, information and records as required by Department.

Sheriffs and jail superintendents shall keep such other accounts and records and furnish to the Department such information and reports as may be required by the Department.

History. Code 1950, § 53-171; 1982, c. 636; 1991, c. 383.

§ 53.1-124. Sheriffs and jail superintendents to report to the courts.

  1. If requested by the judge, the sheriffs of all local jails and the jail superintendents of all regional jails of this Commonwealth shall, on the first day of each term of the circuit court, make written reports to the judge thereof, to the attorney for the Commonwealth, and to city attorneys whose duties include prosecuting certain cases, showing the number of prisoners in jail on that day. The report shall show the name, date of commitment, offense and sentence of each prisoner. The judge of such court, after examining the report, shall enter an order directing the clerk to file the same in the clerk’s office of such court.
  2. If requested by the chief judge of the circuit court, general district court or juvenile and domestic relations district court, the sheriffs of all local jails and the jail superintendents of all regional jails of the Commonwealth shall report semimonthly to the circuit court, general district court, and juvenile and domestic relations district court, to the attorney for the Commonwealth, and to the public defender, if any, as established in Article 3.1 (§ 19.2-163.01 et seq.) of Chapter 10 of Title 19.2, showing the number of prisoners in jail on that day awaiting trial. The report shall include the name, offense, date of commitment to jail, and amount of bail established.
  3. If requested by the judge, the sheriffs of all local jails and the jail superintendents of all regional jails shall report weekly to the juvenile and domestic relations district court located within that county, city or region concerning the identity and number of juveniles kept in their jails and the length of time such juveniles have been incarcerated therein.

History. Code 1950, § 53-172; 1976, c. 248; 1982, c. 636; 1990, c. 934; 1991, cc. 218, 383; 2004, cc. 884, 921.

Editor’s note.

Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, “if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly.” The funding was not provided.

The 2004 amendments.

The 2004 amendments by cc. 884 and 921 are identical, and substituted “Article 3.1 (§ 19.2-163.01 et seq.)” for “Article 4 (§ 19.2-163.1 et seq.)” in subsection B.

§ 53.1-125. Failure of sheriffs or jail superintendents to comply with requirements of board; filing of complaint; withholding salary.

If any sheriff or jail superintendent through his default or neglect fails to comply with the requirements of the Board in the operation and management of any jail under his control or management, the Board shall file a complaint with the circuit court of the county or city in which such jail is located, giving ten days’ notice to the sheriff or jail superintendent that on a date fixed in the notice the court will conduct a hearing on the complaint. If the court is of the opinion that the complaint is justified, it shall enter an order directing the State Compensation Board to withhold approval of the payment of any further salary to the sheriff or jail superintendent until there has been compliance with specified requirements of the Board. If the court is of the opinion that the charges are unfounded, the complaint shall be dismissed.

History. Code 1950, § 53-173; 1974, cc. 44, 45; 1982, c. 636; 1991, c. 383.

CASE NOTES

The Virginia Department of Corrections has sufficient authority to compel local jails to comply with its substantive regulations in holding long-term felons. Hill v. Hutto, 537 F. Supp. 1185, 1982 U.S. Dist. LEXIS 12085 (E.D. Va. 1982) (decided under prior law).

OPINIONS OF THE ATTORNEY GENERAL

Security at public facility operated by community services board. —

A sheriff may assign a deputy to provide full-time security at a public facility operated by a community services board, such as a program for students that is operated by a community services board in cooperation with a local public school system. See opinion of Attorney General to Lucy E. Phillips, Esquire, Washington County Attorney, 17-012, 2017 Va. AG LEXIS 25 (11/16/17).

§ 53.1-126. Responsibility of sheriffs and jail superintendents for food, clothing and medicine.

The sheriff or jail superintendent shall purchase at prices as low as reasonably possible all foodstuffs and other provisions used in the feeding of jail prisoners and such clothing and medicine as may be necessary. Nothing herein shall be construed to require a sheriff, jail superintendent or a locality to pay for the medical treatment of an inmate for any injury, illness, or condition that existed prior to the inmate’s commitment to a local or regional facility, except that medical treatment shall not be withheld for any communicable diseases, serious medical needs, or life threatening conditions. Invoices or itemized statements of account from each vendor of such foodstuffs, provisions, clothing and medicines shall be obtained by the sheriff or jail superintendent and presented for payment to the governing body of the city or county or, in the case of regional jails, the regional jail authority or, if none, that body responsible for the fiscal management of the regional jails, which shall be responsible for the payment thereof. He shall certify on each statement or invoice that the merchandise has been received and that the vendor has complied with the terms of the purchase. Such certification shall be in the following words: “I hereby certify that the merchandise or service has been received and that the terms of the purchase have been complied with on the part of the vendor. The merchandise or service has been or will be used solely for the feeding and care of prisoners confined in jail.” If any county or city has a purchasing agent, the local governing body may require all such purchases to be made by or through the purchasing agent.

History. Code 1950, § 53-175; 1982, c. 636; 1991, c. 383; 2003, cc. 928, 1019; 2011, c. 727.

The 2003 amendments.

The 2003 amendment by cc. 928 and 1019 are virtually identical and inserted the second sentence. The sentence as added by c. 1019 includes the phrase “serious medical needs.”

The 2011 amendments.

The 2011 amendment by c. 727, in the third sentence, inserted “for payment” preceding “to the governing body of the city” and added “which shall be responsible for the payment thereof” to the end.

OPINIONS OF THE ATTORNEY GENERAL

Payment for medical treatment of inmate. —

There is no requirement that sheriff, jail superintendent, or locality pay for inmate’s medical treatment for condition preexisting incarceration, except when condition is communicable disease, serious medical need, or life threatening; sheriff must transport inmate to medical facility and pay for treatment when it is not available at jail. See opinion of Attorney General to The Honorable Robert T. Williamson, Sheriff for Frederick County, 04-013 (4/16/04) (overruled to the extent that it is inconsistent with 2017 opinion numbered 16-055).

Local correctional facilities must ensure inmates receive appropriate medical care for communicable diseases, serious medical needs, or life threatening conditions, whether pre-existing or not, those facilities are not liable for the cost of such treatment by outside healthcare providers if such disease, medical need or condition existed prior to local incarceration. See opinion of Attorney General to The Honorable David R. Hines, Hanover County Sheriff, 16-055, 2017 Va. AG LEXIS 14 (4/27/17).

Food harvested and consumed by prisoners. —

Assuming all other statutory provisions are met, inmate crews may cultivate a garden on private property leased to a nonprofit organization so long as the nonprofit organization qualifies as exempt from taxation under 26 U.S.C. § 501(c)(3). See opinion of Attorney General to The Honorable Kenneth W. Stolle, Sheriff/High Constable for Virginia Beach, 11-109, 2011 Va. AG LEXIS 47 (12/16/11).

Local funding of sheriffs’ offices. —

Statute requires the locality to directly pay vendors of foodstuffs and other provisions purchased by the sheriff and used by jail prisoners. No statute authorizes revenues dedicated for prisoner processing or courthouse security to be used to “credit” or offset funds a locality is required to pay a sheriff for other purposes. See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, No. 15-010, 2015 Va. AG LEXIS 22 (7/24/15).

Medical costs. —

Compensation Board is required to reimburse local correctional facilities for the medical costs of all inmates who are “State Responsible” while those inmates are in the temporary custody of a local correctional facility, beginning on the sixty-first day after notice of the commitment order is provided. See opinion of Attorney General to The Honorable C.T. Woody, Jr., Sheriff, City of Richmond, 15-079, 2016 Va. AG LEXIS 16 (9/1/16).

§ 53.1-127. (Effective until July 1, 2022) Who may enter interior of local correctional facilities; searches of those entering.

  1. Members of the local governing bodies that participate in the funding of a local correctional facility may go into the interior of that facility. Agents of the Board may go into the interior of any local correctional facility. In addition, Department of Corrections staff and state and local health department staff shall, in the performance of their duties, have access to the interior of any local correctional facility subject to the standards promulgated pursuant to subsections A and B of § 53.1-68 . Attorneys shall be permitted in the interior of a local correctional facility to confer with prisoners who are their clients and with prisoners who are witnesses in cases in which they are involved. Except for the announced or unannounced inspections authorized pursuant to subsections A and B of § 53.1-68 or a review conducted pursuant to § 53.1-69.1 , the sheriff, jail administrator, or other person in charge of the facility shall prescribe the time and conditions under which attorneys and other persons may enter the local correctional facility for which he is responsible.
  2. Any person seeking to enter the interior of any local correctional facility shall be subject to a search of his person and effects. Such search shall be performed in a manner reasonable under the circumstances and may be a condition precedent to entering a local correctional facility.

History. 1982, c. 636; 1995, c. 797; 2017, c. 759.

The 2017 amendments.

The 2017 amendment by c. 759, in subsection A, substituted “that” for “which” in the first sentence, “subsections A and B of § 53.1-68 ” for “§ 53.1-68 A and B” in the third sentence, and “subsections A and B of § 53.1-68 or a review conducted pursuant to § 53.1-69.1 ” for “§ 53.1-68 A and B” in the last sentence.

The 2022 amendments.

The 2022 amendment by c. 277, substituted “The Governor, members of the General Assembly, and agents of the Board” for “Agents of the Board” in the second sentence of subsection A.

CASE NOTES

Statute of limitations. —

Trial court properly granted a plea of the statute of limitations in an arrestee’s suit seeking damages resulting from an allegedly improper body cavity search because the arrestee was “confined” within the meaning of § 8.01-243.2 , and the body cavity search related to the conditions of her confinement. Bing v. Haywood, 283 Va. 381 , 722 S.E.2d 244, 2012 Va. LEXIS 40 (2012).

§ 53.1-127. (Effective July 1, 2022) Who may enter interior of local correctional facilities; searches of those entering.

  1. Members of the local governing bodies that participate in the funding of a local correctional facility may go into the interior of that facility. The Governor, members of the General Assembly, and agents of the Board may go into the interior of any local correctional facility. In addition, Department of Corrections staff and state and local health department staff shall, in the performance of their duties, have access to the interior of any local correctional facility subject to the standards promulgated pursuant to subsections A and B of § 53.1-68 . Attorneys shall be permitted in the interior of a local correctional facility to confer with prisoners who are their clients and with prisoners who are witnesses in cases in which they are involved. Except for the announced or unannounced inspections authorized pursuant to subsections A and B of § 53.1-68 or a review conducted pursuant to § 53.1-69.1 , the sheriff, jail administrator, or other person in charge of the facility shall prescribe the time and conditions under which attorneys and other persons may enter the local correctional facility for which he is responsible.
  2. Any person seeking to enter the interior of any local correctional facility shall be subject to a search of his person and effects. Such search shall be performed in a manner reasonable under the circumstances and may be a condition precedent to entering a local correctional facility.

History. 1982, c. 636; 1995, c. 797; 2017, c. 759; 2022, c. 277.

§ 53.1-127.1. Establishment of stores in local correctional facilities.

Each sheriff who operates a correctional facility is authorized to provide for the establishment and operation of a store or commissary to deal in such articles and services as he deems proper. The net profits from the operation of such store that are generated from the inmates’ accounts shall be used within the facility for educational, recreational or other purposes for the benefit of the inmates as may be prescribed by the sheriff. Any other profits may be used for the general operation of the sheriff’s office. The sheriff shall be the purchasing agent in all matters involving the commissary and nonappropriated funds received from inmates. The funds from such operation of a store or commissary and from the inmate telephone services account shall be considered public funds.

History. 1993, cc. 314, 616; 2002, c. 182; 2013, c. 91.

The 2002 amendments.

The 2002 amendment by c. 182 added the last sentence.

The 2013 amendments.

The 2013 amendment by c. 91 inserted “and services” near the end of the first sentence, inserted “that are generated from the inmates’ accounts” near the middle of the second sentence, and inserted the third sentence.

OPINIONS OF THE ATTORNEY GENERAL

Inmates’ canteen fund may be used to make payments to faith based organizations

when such organizations provide rehabilitation services, education programs, counseling, and, if requested by an inmate, spiritual guidance, including providing Bibles and other religious materials. See opinion of Attorney General to The Honorable Gabriel A. Morgan, Sheriff of the City of Newport News and The Honorable B.J. Roberts, Sheriff of the City of Hampton, 06-052 (12/14/06).

Inmate telephone commissions. —

Virginia law does not require that funds generated from inmate telephone commissions that are received by the treasurer and deposited into the city’s funds to be reallocated back to the sheriff’s office to be used within the facility for the benefit of the inmates. The sheriffs office may not establish and maintain a separate fund for such commissions. Regardless of the account into which the treasurer initially deposits the funds, they remain allocable to city. See opinion of Attorney General to The Honorable Vanessa R. Crawford, Sheriff, City of Petersburg, 12-068, 2012 Va. AG LEXIS 39 (10/5/2012).

§ 53.1-127.2. Fees for electronic visitation and messaging with prisoners in local correctional facilities.

Each sheriff or jail superintendent who operates a correctional facility that utilizes an electronic visitation system or electronic messaging system, including Voice-over-Internet Protocol technology and web-based communication systems, for communication between prisoners and third parties is authorized to provide for the establishment and collection of a fee for the system utilized. However, no fee shall be charged for communication between prisoners and third parties within any local correctional facility or appurtenance thereto operated or controlled by the sheriff or jail superintendent.

This section does not apply to telephonic communication systems or to electronic video and audio communication systems used in judicial proceedings.

History. 2011, c. 532; 2013, c. 449.

The 2013 amendments.

The 2013 amendment by c. 449, in the first paragraph, inserted “including Voice-over-Internet Protocol technology and web-based communication systems,” deleted the former second sentence which read: “The fee shall not exceed the actual costs of establishing and operating such a system and the proceeds may not be used for any purpose other than to offset the costs of establishing and operating a system,” and added the last sentence.

§ 53.1-127.3. Deferred or installment payment agreement for unpaid fees.

If a person is unable to pay in full the fees owed to the local correctional facility or regional jail pursuant to § 53.1-131.3 , the sheriff or jail superintendent shall establish a deferred or installment payment agreement subject to the approval of the general district court. As a condition of every such agreement, a person who enters into a deferred or installment payment agreement shall promptly inform the sheriff or jail superintendent of any change of mailing address during the term of the agreement.

History. 2012, c. 829; 2020, cc. 740, 741.

Editor’s note.

Acts 2020, cc. 740 and 741, cl. 3 provides: “That the Governor shall provide the necessary certifications required pursuant to 23 U.S.C. § 159(a)(3)(B) by September 21, 2020.”

The 2020 amendments.

The 2020 amendments by cc. 740 and 741 are identical and deleted the former last sentence, which read: “The sheriff or jail superintendent shall give notice to the person at the time the deferred or installment payment agreement is entered into and the person shall certify on a form prescribed by the local correctional facility or regional jail that he understands that upon his failure or refusal to pay in accordance with a deferred or installment payment agreement, the person’s privilege to operate a motor vehicle shall be suspended pursuant to the provisions of § 46.2-320.2 .”

Research References.

Virginia Forms (Matthew Bender). No. 9-2540 Petition/Order: Installment Payment of Jail Fees.

OPINIONS OF THE ATTORNEY GENERAL

Collection. —

Sheriff has discretion to determine what types of prisoner information he will release to a collection attorney under § 53.1-127.5 , but in all cases the release must not be otherwise prohibited by state or federal law and must be reasonably related to the collection effort. See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, No. 14-082, 2015 Va. AG LEXIS 13 (7/8/15).

§ 53.1-127.4. Repealed by Acts 2020, cc. 740 and 741, cl. 2.

Editor’s note.

Former § 53.1-127.4 , pertaining to suspension of privilege to operate motor vehicle for failure to pay fees, derived from Acts 2012, c. 829.

§ 53.1-127.5. Collection of fees owed; contract for collection; duties of Department of Taxation.

The sheriff or jail superintendent may (i) contract with private attorneys or private collection agencies, (ii) enter into an agreement with a local governing body, or (iii) enter into an agreement with the county or city treasurer, upon such terms and conditions as may be established by guidelines promulgated by the Board, to collect fees imposed under § 53.1-131.3 . As part of such contract, private attorneys or collection agencies shall be given access to the social security number of the person who owes the fees in order to assist in the collection effort. Any such private attorney or collection agency shall be subject to the penalties and provisions of § 18.2-186.3 .

The fees of any private attorney or collection agency shall be paid on a contingency fee basis out of the proceeds of the amounts collected. However, in no event shall such attorney or collection agency receive a fee for amounts collected by the Department of Taxation under the Setoff Debt Collection Act (§ 58.1-520 et seq.). A local treasurer undertaking collection pursuant to an agreement with the sheriff or jail superintendent may collect the administrative fee authorized by § 58.1-3958 .

History. 2012, c. 829.

OPINIONS OF THE ATTORNEY GENERAL

Collection. —

Sheriff has discretion to determine what types of prisoner information he will release to a collection attorney under § 53.1-127.5 , but in all cases the release must not be otherwise prohibited by state or federal law and must be reasonably related to the collection effort. See opinion of Attorney General to The Honorable Ken Stolle, Sheriff, City of Virginia Beach, No. 14-082, 2015 Va. AG LEXIS 13 (7/8/15).

Article 7. Prisoner Programs and Treatment.

§ 53.1-128. Workforces and authorized work places.

The local governing body of any county, city or town may establish workforces in the county, city or town under such conditions as it may prescribe. Such workforces are authorized to work on (i) public property or works owned, leased or operated by the Commonwealth or the county, city or town; (ii) a privately operated national park on federal land; (iii) any property owned by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3) or (c)(4) and that is organized and operated exclusively for charitable or social welfare purposes whether the same is located within such county, city or town, or elsewhere; or (iv) private property (a) owned or occupied by an elderly or indigent person or persons where such property has been identified by a citizens housing advisory committee as needing rehabilitation or repair and the property owner has consented to such work or (b) classified as or used as a cemetery where such property has been abandoned and where on such property exist nuisances that have been identified by a municipal corporation for abatement or removal pursuant to § 15.2-1115 or a similar local ordinance. Every person 18 years of age or older who is convicted and confined for any violation of a local ordinance and who is confined as a punishment or for failure to pay a required fine, shall be liable to work in such workforce. Every person 18 years of age or older who is confined pending disposition of an offense under Chapter 5 (§ 20-61 et seq.) of Title 20 or a criminal offense not listed in § 19.2-297.1 may work in such workforce on a voluntary basis with the approval of and under the supervision of the sheriff or his designee.

History. Code 1950, § 53-163; 1970, c. 648; 1982, c. 636; 1991, c. 580; 1997, cc. 123, 546; 2010, c. 168; 2011, c. 767; 2019, c. 199.

The 1997 amendments.

The 1997 amendment by c. 123 inserted “or on a privately operated national park on federal land” in the second sentence.

The 1997 amendment by c. 546 inserted “or any property owned by a nonprofit organization which is exempt from taxation under 26 U.S.C. § 501 (c) (3) or (c) (4) and which is organized and operated exclusively for charitable or social welfare purposes” in the second sentence.

The 2010 amendments.

The 2010 amendment by c. 168 substituted “workforces” for “work forces,” “that” for “which” and “workforce” for “work force” throughout the section; in the second sentence, inserted “the Commonwealth or” following “leased or operated by,” deleted “or” following “federal land” and added the language beginning “or on private property owned or occupied” at the end; and made minor stylistic changes.

The 2011 amendments.

The 2011 amendment by c. 767, in the first sentence inserted clause (i) to (iv) and clause (iv)(a) designations, added clause (iv)(b), and made related changes.

The 2019 amendments.

The 2019 amendment by c. 199 deleted “a nonviolent criminal offense or” following “disposition of,” inserted “or a criminal offense not listed in § 19.2-297.1 ” and added “or his designee” at the end.

Michie’s Jurisprudence.

For related discussion, see 5B M.J. Criminal Procedure, §§ 98, 99.

OPINIONS OF THE ATTORNEY GENERAL

Inmate crews. —

Inmate crews may work on property outside the jurisdiction of the sheriff when authorized by court order or, if the workforce is established by the local governing body, only when the property is owned by a tax-exempt nonprofit organization that is organized and operated exclusively for charitable or social welfare purposes. See opinion of Attorney General to The Honorable Kenneth W. Stolle, Sheriff/High Constable for Virginia Beach, 11-109, 2011 Va. AG LEXIS 47 (12/16/11).

Assuming all other statutory provisions are met, inmate crews may cultivate a garden on private property leased to a nonprofit organization so long as the nonprofit organization qualifies as exempt from taxation under 26 U.S.C. § 501(c)(3). See opinion of Attorney General to The Honorable Kenneth W. Stolle, Sheriff/High Constable for Virginia Beach, 11-109, 2011 Va. AG LEXIS 47 (12/16/11).

Inmate crews, pursuant to court order, may maintain trails on private property leased to a nonprofit organization provided the nonprofit organization qualifies as exempt from taxation under 26 U.S.C. § 501(c)(3). See opinion of Attorney General to The Honorable Kenneth W. Stolle, Sheriff/High Constable for Virginia Beach, 11-109, 2011 Va. AG LEXIS 47 (12/16/11).

§ 53.1-129. Order permitting prisoners to work on state, county, city, town, certain private property or nonprofit organization property; bond of person in charge of prisoners.

The circuit court of any county or city may, by order entered of record, allow persons confined in the jail of such county or city who are awaiting disposition of, or serving sentences imposed for, misdemeanors or felonies to work on (i) state, county, city or town property, (ii) any property owned by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3) and that is organized and operated exclusively for charitable or social welfare purposes on a voluntary basis with the consent of the county, city, town or state agency or the local public service authority or upon the request of the nonprofit organization involved, (iii) private property that is part of a community improvement project sponsored by a locality or that has structures that are found to be public nuisances pursuant to §§ 15.2-900 and 15.2-906 provided that the court has reviewed and approved the project for the purposes herein and permits the prisoners to work on such project, (iv) any private property utilized by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3), or (v) private property in any locality that meets the criteria under an ordinance adopted by such locality under § 15.2-908 . The district court of any county or city may allow persons confined in the jail of such county or city who are awaiting disposition of, or serving sentences imposed for, misdemeanors to work on (a) state, county, city or town property, (b) any property owned by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3) and that is organized and operated exclusively for charitable or social welfare purposes on a voluntary basis with consent of the county, city, town or state agency or the local public service authority or upon the request of the nonprofit organization involved, (c) private property that is part of a community improvement project sponsored by a locality or that has structures that are found to be public nuisances pursuant to §§ 15.2-900 and 15.2-906 provided that the court has reviewed and approved the project for the purposes herein and permits the prisoners to work on such project, (d) any private property utilized by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3), or (e) private property in any locality that meets the criteria under an ordinance adopted by such locality under § 15.2-908 . Prisoners performing work as provided in this paragraph may receive credit on their respective sentences for the work done, whether such sentences are imposed prior or subsequent to the work done, as the court orders.

The court may, by order entered of record, require a person convicted of a felony to work on state, county, city or town property, with the consent of the county, city, town or state agency or the local public service authority involved, for such credit on his sentence as the court orders.

In the event that a person other than the sheriff or jail superintendent is designated by the court to have charge of such prisoners while so working, the court shall require a bond of the person, in an amount to be fixed by the court, conditioned upon the faithful discharge of his duties. Neither the sheriff nor the jail superintendent shall be held responsible for any acts of omission or commission on the part of such person.

Any person committed to jail upon a felony offense committed on or after January 1, 1995, who receives credit on his sentence as provided in this section shall not be entitled to good conduct credit, sentence credit, earned sentence credit, other credit, or a combination of any credits in excess of that permissible under Article 4 (§ 53.1-202.2 et seq.) of Chapter 6 of this title. So much of an order of any court contrary to the provisions of Article 4 shall be deemed null and void.

History. Code 1950, § 53-165; 1976, c. 618; 1978, c. 609; 1982, c. 636; 1984, c. 43; 1991, c. 580; 1994, c. 269; 1997, cc. 134, 546; 1998, c. 311; 1999, cc. 277, 951, 1007; 2001, cc. 185, 196; 2003, cc. 818, 820; 2005, c. 409; 2008, c. 623; 2010, c. 132.

The 1997 amendments.

The 1997 amendment by c. 134 inserted “or the local public service authority” following “state agency” in three places.

The 1997 amendment by c. 546, in the first paragraph, in the first and second sentences, inserted “or any property owned by a nonprofit organization which is exempt from taxation under 26 U.S.C. § 501 (c) (3) or (c) (4) and which is organized and operated exclusively for charitable or social welfare purposes” and inserted “or upon the request of the nonprofit organization.”

The 1998 amendment, in the first paragraph, in the first and second sentences, and in the second paragraph, substituted “county, city or town property” for “county or, city property,” and inserted “town” following “consent of the county, city.”

The 1999 amendments.

The 1999 amendment by c. 277, in the first paragraph, inserted “(i)” following “to work on,” substituted “(ii)” for “or,” inserted “or (iii) private property which is part of a community improvement project sponsored by a locality,” inserted “(i)” following “misdemeanors to work on,” substituted “(ii)” for “or,” and inserted “or (iii) private property which is part of a community improvement project sponsored by a locality.”

The 1999 amendments by cc. 951 and 1007 are identical, and in the first paragraph, deleted “judge of the” preceding “circuit court” in the first sentence, deleted “judge of the” preceding “district court” in the second sentence, and substituted “the court orders” for “the court may in the order prescribe” in the third sentence; in the second paragraph, substituted “court” for “judge,” and substituted “the court orders” for “judge may prescribe in his order”; and added the fourth paragraph.

The 2001 amendments.

The 2001 amendments by c. 185 and 196 are identical, and in the first paragraph, substituted “that” for “which” throughout; inserted “or that has structures that are found to be public nuisances pursuant to §§ 15.2-900 and 15.2-906 provided that the court has reviewed and approved the project for the purposes herein and permits the prisoner to work on such project” in clause (iii) of the first sentence; and in the second sentence, substituted “(a)” for “(i),” (b)” for “(ii),” “(c)” for “(iii),” and inserted “or that has structures that are found to be public nuisances pursuant to §§ 15.2-900 and 15.2-906 provided that the court has reviewed and approved the project for the purposes herein and permits the prisoner to work on such project.”

The 2003 amendments.

The 2003 amendments by cc. 818 and 820 are identical, and in the first paragraph, substituted “by specific order entered of record for an identified individual prisoner, allow a person confined in the jail of such county or city who is awaiting” for “may, by order entered of record, allow persons confined in the jail of such county or city who are awaiting” near the beginning of the first sentence, substituted “may, by specific order for an identified individual prisoner, allow a person confined in the jail of such county or city who is awaiting” for “may allow persons confined in the jail of such county or city who are awaiting” near the beginning of the second sentence, and added the last sentence; and substituted “may, by specific order entered of record for an identified individual prisoner, require” for “may, by order entered of record, require” near the beginning of the second paragraph.

The 2005 amendments.

The 2005 amendment by c. 409, in the first paragraph, deleted “specific” preceding “order,” “for an identified individual prisoner” following “entered of record,” “by specific order for an identified individual prisoner” following “county or city may,” and the last sentence which read: “For all offenses committed on or after July 1, 2003, any order that does not specifically identify individual prisoners shall be void.”, substituted “persons” for “person” two times, “are” for “is,” and “prisoners” for “prisoner” two times; in the second paragraph, deleted “specific” preceding “order” and “for an identified individual prisoner” preceding “require a person.”

The 2008 amendments.

The 2008 amendment by c. 623, in first paragraph, added clauses (iv) and (d), substituted “26 U.S.C. § 501(c)(3)” for “26 U.S.C. § 501(c) (3) or (c)(4)” twice, and made minor stylistic changes.

The 2010 amendments.

The 2010 amendment by c. 132, in the first paragraph, added clause (v) at the end of the first sentence, added clause (e) at the end of the second sentence, and made related changes.

OPINIONS OF THE ATTORNEY GENERAL

Prisoners working outside city. —

Prisoner-workers from a city jail may work on state, county and city property located outside the city; however, the sheriff has no authority to supervise the prisoner-workers while they are working outside the sheriff’s jurisdiction. See opinion of Attorney General to The Honorable Gary W. Waters, Sheriff for the City of Portsmouth, 03-056 (8/5/03).

Work crews outside jurisdiction of sheriff. —

Inmate crews may work on property outside the jurisdiction of the sheriff when authorized by court order or, if the workforce is established by the local governing body, only when the property is owned by a tax-exempt nonprofit organization that is organized and operated exclusively for charitable or social welfare purposes. See opinion of Attorney General to The Honorable Kenneth W. Stolle, Sheriff/High Constable for Virginia Beach, 11-109, 2011 Va. AG LEXIS 47 (12/16/11).

Assuming all other statutory provisions are met, inmate crews may cultivate a garden on private property leased to a nonprofit organization so long as the nonprofit organization qualifies as exempt from taxation under 26 U.S.C. § 501(c)(3). See opinion of Attorney General to The Honorable Kenneth W. Stolle, Sheriff/High Constable for Virginia Beach, 11-109, 2011 Va. AG LEXIS 47 (12/16/11).

Inmate crews, pursuant to court order, may maintain trails on private property leased to a nonprofit organization provided the nonprofit organization qualifies as exempt from taxation under 26 U.S.C. § 501(c)(3). See opinion of Attorney General to The Honorable Kenneth W. Stolle, Sheriff/High Constable for Virginia Beach, 11-109, 2011 Va. AG LEXIS 47 (12/16/11).

§ 53.1-130. Sheriffs, jail superintendents, etc., not to be interested in property where work performed; penalty.

No sheriff, jail superintendent, deputy or other jail officer shall have any prisoner work on property owned by him or by his relative, or on projects in which he is interested, nor shall any such prisoner be used for the personal gain or convenience of any sheriff or of any other individual. Any person found guilty of a violation of this section shall be guilty of a Class 1 misdemeanor.

History. Code 1950, § 53-166; 1970, c. 648; 1982, c. 636; 1991, c. 383.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 53.1-131. Provision for release of prisoner from confinement for employment, educational or other rehabilitative programs; escape; penalty; disposition of earnings.

  1. Any court having jurisdiction for the trial of a person charged with a criminal offense or charged with an offense under Chapter 5 (§ 20-61 et seq.) of Title 20 may, if the defendant is convicted and (i) sentenced to confinement in jail or (ii) being held in jail pending completion of a presentence report pursuant to § 19.2-299 , and if it appears to the court that such offender is a suitable candidate for work release, assign the offender to a work release program under the supervision of a probation officer, the sheriff or the administrator of a local or regional jail or a program designated by the court. The court further may authorize the offender to participate in educational or other rehabilitative programs designed to supplement his work release employment. The court shall be notified in writing by the director or administrator of the program to which the offender is assigned of the offender’s place of employment and the location of any educational or rehabilitative program in which the offender participates.Any person who has been sentenced to confinement in jail or who has been convicted of a felony but is confined in jail pursuant to § 53.1-20 , in the discretion of the sheriff may be assigned by the sheriff to a work release program under the supervision of the sheriff or the administrator of a local or regional jail. The sheriff may further authorize the offender to participate in educational or other rehabilitative programs as defined in this section designed to supplement his work release employment. The court that sentenced the offender shall be notified in writing by the sheriff or the administrator of a local or regional jail of any such assignment and of the offender’s place of employment or other rehabilitative program. The court, in its discretion, may thereafter revoke the authority for such an offender to participate in a work release program.The sheriff and the Director may enter into agreements whereby persons who are committed to the Department, whether such persons are housed in a state or local correctional facility, and who have met all standards for such release, may participate in a local work release program or in educational or other rehabilitative programs as defined in this section. The administrator of a regional jail and the Director may also enter into such agreements where such agreements are approved in advance by a majority of the sheriffs on the regional jail board. All persons accepted in accordance with this section shall be governed by all regulations applying to local work release, notwithstanding the provisions of any other section of the Code. Local jails shall qualify for compensation for cost of incarceration of such persons pursuant to § 53.1-20 .1, less any payment for room and board collected from the inmate.If an offender who has been assigned to such a program by the court is in violation of the rules of the jail pursuant to § 53.1-117 , the sheriff or jail administrator may remove the offender from the work release program, either temporarily or for the duration of the offender’s confinement. Upon removing an offender from the work release program, the sheriff or jail administrator shall notify in writing the court that sentenced the offender and indicate the specific violations that led to the decision.Any offender assigned to such a program by the court or sheriff who, without proper authority or just cause, leaves the area to which he has been assigned to work or attend educational or other rehabilitative programs, or leaves the vehicle or route of travel involved in his going to or returning from such place, is guilty of a Class 1 misdemeanor. In the event such offender leaves the Commonwealth, the offender may be found guilty of an escape as provided in § 18.2-477 . An offender who is found guilty of a Class 1 misdemeanor in accordance with this section shall be ineligible for further participation in a work release program during his current term of confinement.The Board shall prescribe regulations to govern the work release, educational and other rehabilitative programs authorized by this section.Any wages earned pursuant to this section by an offender may, upon order of the court, be paid to the director or administrator of the program after standard payroll deductions required by law. Distribution of such wages shall be made for the following purposes:
    1. To pay an amount to defray the cost of his keep;
    2. To pay travel and other such expenses made necessary by his work release employment or participation in an educational or rehabilitative program;
    3. To provide support and maintenance for his dependents or to make payments to the local department of social services or the Commissioner of Social Services, as appropriate, on behalf of dependents who are receiving public assistance or social services as defined in § 63.2-100 ; or
    4. To pay any fines, restitution or costs as ordered by the court.Any balance at the end of his sentence shall be paid to the offender upon his release.
  2. For the purposes of this section:“Educational program” means a program of learning recognized by the State Council of Higher Education, the State Board of Education, the Director, or the State Board of Local and Regional Jails.“Rehabilitative program” includes an alcohol and drug treatment program, mental health program, family counseling, community service or other community program approved by the court having jurisdiction over the offender.“Sheriff” means the sheriff of the jurisdiction where the person charged with the criminal offense was convicted and sentenced, provided that the sheriff may designate a deputy sheriff or regional jail administrator to assign offenders to work release programs under this section.“Work release” means full-time employment or participation in suitable career and technical education programs.

History. Code 1950, §§ 19-273.1, 53-166.1; 1956, c. 688; Code 1950, § 19.1-300; 1960, c. 366; 1970, c. 121; 1972, c. 145; 1973, c. 38; 1976, c. 295; 1979, c. 706; 1980, c. 566; 1982, c. 636; 1984, c. 516; 1985, c. 301; 1988, c. 397; 1989, c. 586; 1990, cc. 107, 676, 768; 2000, c. 423; 2002, cc. 747, 800; 2006, c. 792; 2020, c. 759.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Editor’s note.

The phrase “career and technical education” has been substituted for “vocational training” in the definition of “Work release” at the direction of the Virginia Code Commission, pursuant to Acts 2001, c. 483. Acts 2001, c. 483, cl. 4, provides that whenever any references are used in the Code of Virginia to vocational education or to vocational technical education or, when used to denote an education program, to vocational rehabilitation or any other state or local program name that clearly relates to career and technical education within its context, such terms shall be deemed to be subsumed by, synonymous with and included in the term “career and technical education.”

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 68 L, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of §§ 53.1-131 through 53.1-131.3 , Code of Virginia, local and regional jails may charge inmates participating in inmate work programs a reasonable daily amount, not to exceed the actual daily cost, to operate the program.”

The 2000 amendments.

The 2000 amendment by c. 423 substituted “Class 1” for “Class 2” in the fourth paragraph in two places.

The 2002 amendments.

The 2002 amendment by c. 747, effective October 1, 2002, in subdivision A 3, deleted “welfare or” following “departments of,” inserted “or social services” following “public assistance,” and substituted “§ 63.2-100 ” for “§ 63.1-87.”

The 2002 amendment by c. 800, in subsection A, deleted “office of the” preceding “sheriff” in the first sentence in the first paragraph, in the second paragraph, deleted ‘’or the administrator of a local or regional jail” following the first occurrence of “sheriff,” deleted “or the administrator of a local or regional jail” following the second occurrence of “sheriff,” deleted “office of the” preceding the third occurrence of “sheriff,”and deleted “or the administrator of a local or regional jail” following the fourth occurrence of “sheriff,” in the third paragraph, deleted “or other administrative head of a local correctional facility” following “sheriff” in the first sentence, and inserted the second sentence, and in the first sentence in the fourth paragraph, deleted “or the administrator of a local or regional jail” following “sheriff” and substituted “is” for “shall be” preceding “guilty”; deleted “welfare or” following “department of” in subdivision A 3; and inserted the definition of “sheriff” in subsection B.

The 2006 amendments.

The 2006 amendment by c. 792 inserted the fourth paragraph in subsection A.

The 2020 amendments.

The 2020 amendment by c. 759 substituted “Education, the Director, or the State Board of Local and Regional Jails” for “Education or the State Board of Corrections” in subsection B in the definition for “Educational program.”

Michie’s Jurisprudence.

For related discussion, see 5B M.J. Criminal Procedure, §§ 92, 98.

CASE NOTES

Right to work release. —

Prisoner’s claim that a regional jail authority, a city, and the jail officials violated his constitutionally protected right to participate in a work release program would fail because under subsection A of § 53.1-131 , the state court’s order sentencing the prisoner did not make payment of costs and fines the only condition for work release, but contemplated that jail officials were to make an independent determination of a prisoner’s eligibility for work release. Kitchen v. Upshaw, 286 F.3d 179, 2002 U.S. App. LEXIS 6509 (4th Cir. 2002).

OPINIONS OF THE ATTORNEY GENERAL

Assignment of felon to work release. —

A circuit court may assign a felon, who has been convicted and is held in jail pending completion of a presentence report or is sentenced to confinement in jail, to a work release program based on its criteria, and not those established by the sheriff, but the authority to assign a felon, who is serving a sentence pursuant to § 53.1-20 in a local, rather than a state, correctional facility, to work release lies with the sheriff or jail administrator operating the jail, and not with the sentencing court; however, the sentencing court must be notified in writing by the sheriff or jail administrator of such work release assignment and the court may revoke such work release in its discretion. See opinion of Attorney General to The Honorable Gary W. Waters, Sheriff for the City of Portsmouth, 99-113 (5/26/00).

Prisoners working outside city. —

Prisoner-workers from a city jail may work on state, county and city property located outside the city; however, the sheriff has no authority to supervise the prisoner-workers while they are working outside the sheriff’s jurisdiction. See opinion of Attorney General to The Honorable Gary W. Waters, Sheriff for the City of Portsmouth, 03-056 (8/5/03).

§ 53.1-131.1. Provision for sentencing of person to nonconsecutive days in jail; payment to defray costs; penalty.

Any court having jurisdiction for the trial of a person charged with a misdemeanor, traffic offense, any offense under Chapter 5 (§ 20-61 et seq.) of Title 20, or a felony that is not an act of violence as defined in § 19.2-297.1 may, for good cause, if the defendant is convicted and sentenced to confinement in jail and the active portion of the sentence remaining to be served is 45 days or less, impose the remaining time to be served on weekends or nonconsecutive days to permit the convicted defendant to retain gainful employment; however, the court shall not impose weekends or nonconsecutive days for a person convicted of a felony if the Commonwealth objects. A person sentenced pursuant to this section shall pay an amount to defray the cost of his keep, which amount shall be the actual cost of incarceration but shall not exceed that amount charged to the Compensation Board for purposes of reimbursement as provided in the general appropriation act. Such amount shall be collected by the sheriff, if he is responsible for operating a jail, or by the regional jail superintendent, and remitted by the sheriff to the treasurer of the appropriate county or city, or by the regional jail superintendent to the regional jail board or authority, solely for the purposes of defraying the costs of such weekend or nonconsecutive incarceration. The funds collected pursuant to this section shall not be used for purposes other than those provided for in this section. The assessment provided for herein shall be in addition to any other fees prescribed by law. If the defendant willfully fails to report at times specified by the court, the sentence imposed pursuant to this section shall be revoked and a straight jail sentence imposed.

If an offender who has been sentenced to nonconsecutive days by the court is in violation of the rules of the jail pursuant to § 53.1-117 , the sheriff or jail administrator may require the offender to serve out a portion or the entirety of the remainder of his sentence in consecutive days. Upon revoking the offender’s ability to serve his sentence on nonconsecutive days, the sheriff or jail administrator shall notify in writing the court that sentenced the offender and indicate the specific violations that led to the decision.

The time served by a person sentenced for violation of state law in a local jail, regional jail, or local jail farm pursuant to this section shall be included in the count of prisoner days reported by the Department for the purpose of apportioning state funds to local correctional facilities for operating costs in accordance with § 53.1-84 .

History. 1983, c. 172; 1984, c. 490; 1994, c. 901; 1999, c. 9; 2002, cc. 805, 831; 2003, c. 1039; 2006, c. 792; 2018, c. 535.

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 68 L, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of §§ 53.1-131 through 53.1-131.3 , Code of Virginia, local and regional jails may charge inmates participating in inmate work programs a reasonable daily amount, not to exceed the actual daily cost, to operate the program.”

The 2002 amendments.

The 2002 amendment by c. 805, in the first paragraph, added “and remitted to the treasurer of the appropriate county or city for purposes of defraying costs herein” at the end of the third sentence and inserted the fourth sentence.

The 2002 amendment by c. 831, effective July 1, 2003, in the first paragraph, rewrote the second sentence and deleted the third sentence.

The 2003 amendments.

The 2003 amendment by c. 1039 rewrote the first paragraph.

The 2006 amendments.

The 2006 amendment by c. 792 inserted the second paragraph.

The 2018 amendments.

The 2018 amendment by c. 535 rewrote the first sentence, which formerly read “Any court having jurisdiction for the trial of a person charged with a misdemeanor or traffic offense or charged with any offense under Chapter 5 (§ 20-61 et seq.) of Title 20 may, if the defendant is convicted and sentenced to confinement in jail, impose the time to be served on weekends or nonconsecutive days to permit the convicted defendant to retain gainful employment.”

Research References.

Virginia Forms (Matthew Bender). No. 9-2909 Restricted Driver’s License Order — Failure to Pay Jail Fee.

OPINIONS OF THE ATTORNEY GENERAL

Applicability. —

Trial court may not order a person convicted of a felony to serve any confinement in jail on weekends or nonconsecutive days. The plain language of § 53.1-131.1 , limits the court’s authority to convictions for misdemeanors, traffic offenses and violations of Chapter 5 (§ 20-61 et seq.) Title 20. See opinion of Attorney General to The Honorable Harvey L. Bryant, Commonwealth’s Attorney, City of Virginia Beach, 12-062, 2012 Va. AG LEXIS 30 (7/20/2012).

§ 53.1-131.2. Assignment to a home/electronic incarceration program; payment to defray costs; escape; penalty.

  1. Any court having jurisdiction for the trial of a person charged with a criminal offense, a traffic offense or an offense under Chapter 5 (§ 20-61 et seq.) of Title 20, or failure to pay child support pursuant to a court order may, if the defendant is convicted and sentenced to confinement in a state or local correctional facility, and if it appears to the court that such an offender is a suitable candidate for home/electronic incarceration, assign the offender to a home/electronic incarceration program as a condition of probation, if such program exists, under the supervision of the sheriff, the administrator of a local or regional jail, or a Department of Corrections probation and parole district office established pursuant to § 53.1-141 . However, any offender who is convicted of any of the following violations of Chapter 4 (§ 18.2-30 et seq.) of Title 18.2 shall not be eligible for participation in the home/electronic incarceration program: (i) first and second degree murder and voluntary manslaughter under Article 1 (§ 18.2-30 et seq.); (ii) mob-related felonies under Article 2 (§ 18.2-38 et seq.); (iii) any kidnapping or abduction felony under Article 3 (§ 18.2-47 et seq.); (iv) any malicious felonious assault or malicious bodily wounding under Article 4 (§ 18.2-51 et seq.); (v) robbery under § 18.2-58.1 ; or (vi) any criminal sexual assault punishable as a felony under Article 7 (§ 18.2-61 et seq.). The court may further authorize the offender’s participation in work release employment or educational or other rehabilitative programs as defined in § 53.1-131 or, as appropriate, in a court-ordered intensive case monitoring program for child support. The court shall be notified in writing by the director or administrator of the program to which the offender is assigned of the offender’s place of home/electronic incarceration, place of employment, and the location of any educational or rehabilitative program in which the offender participates.
  2. In any city or county in which a home/electronic incarceration program established pursuant to this section is available, the court, subject to approval by the sheriff or the jail superintendent of a local or regional jail, may assign the accused to such a program pending trial if it appears to the court that the accused is a suitable candidate for home/electronic incarceration.
  3. Any person who has been sentenced to jail or convicted and sentenced to confinement in prison but is actually serving his sentence in jail, after notice to the attorney for the Commonwealth of the convicting jurisdiction, may be assigned by the sheriff to a home/electronic incarceration program under the supervision of the sheriff, the administrator of a local or regional jail, or a Department of Corrections probation and parole office established pursuant to § 53.1-141 . However, if the offender violates any provision of the terms of the home/electronic incarceration agreement, the offender may have the assignment revoked and, if revoked, shall be held in the jail facility to which he was originally sentenced. Such person shall be eligible if his term of confinement does not include a sentence for a conviction of a felony violent crime, a felony sexual offense, burglary or manufacturing, selling, giving, distributing or possessing with the intent to manufacture, sell, give or distribute a Schedule I or Schedule II controlled substance. The court shall retain authority to remove the offender from such home/electronic incarceration program. The court which sentenced the offender shall be notified in writing by the sheriff or the administrator of a local or regional jail of the offender’s place of home/electronic incarceration and place of employment or other rehabilitative program.
  4. The Board may prescribe regulations to govern home/electronic incarceration programs, and the Director may prescribe rules to govern home/electronic incarceration programs operated under the supervision of a Department of Corrections probation and parole district office established pursuant to § 53.1-141 .
  5. Any offender or accused assigned to such a program by the court or sheriff who, without proper authority or just cause, leaves his place of home/electronic incarceration, the area to which he has been assigned to work or attend educational or other rehabilitative programs, including a court-ordered intensive case monitoring program for child support, or the vehicle or route of travel involved in his going to or returning from such place, is guilty of a Class 1 misdemeanor. An offender or accused who is found guilty of a violation of this section shall be ineligible for further participation in a home/electronic incarceration program during his current term of confinement.
  6. The director or administrator of a home/electronic incarceration program who also operates a residential program may remove an offender from a home/electronic incarceration program and place him in such residential program if the offender commits a noncriminal program violation. The court shall be notified of the violation and of the placement of the offender in the residential program.
  7. The director or administrator of a home/electronic incarceration program may charge the offender or accused a fee for participating in the program which shall be used for the cost of home/electronic incarceration equipment. The offender or accused shall be required to pay the program for any damage to the equipment which is in his possession or for failure to return the equipment to the program.
  8. Any wages earned by an offender or accused assigned to a home/electronic incarceration program and participating in work release shall be paid to the director or administrator after standard payroll deductions required by law. Distribution of the money collected shall be made in the following order of priority to:
    1. Meet the obligation of any judicial or administrative order to provide support and such funds shall be disbursed according to the terms of such order;
    2. Pay any fines, restitution or costs as ordered by the court;
    3. Pay travel and other such expenses made necessary by his work release employment or participation in an education or rehabilitative program, including the sums specified in § 53.1-150 ; and
    4. Defray the offender’s keep.The balance shall be credited to the offender’s account or sent to his family in an amount the offender so chooses.The State Board of Local and Regional Jails shall promulgate regulations governing the receipt of wages paid to persons participating in such programs, except programs operated under the supervision of a Department of Corrections probation and parole district office established pursuant to § 53.1-141 , the withholding of payments, and the disbursement of appropriate funds. The Director shall prescribe rules governing the receipt of wages paid to persons participating in such programs operated under the supervision of a Department of Corrections probation and parole district office established pursuant to § 53.1-141 , the withholding of payments, and the disbursement of appropriate funds.
  9. For the purposes of this section, “sheriff” means the sheriff of the jurisdiction where the person charged with the criminal offense was convicted and sentenced, provided that the sheriff may designate a deputy sheriff or regional jail administrator to assign offenders to home/electronic incarceration programs pursuant to this section.

History. 1989, c. 476; 1990, c. 209; 1991, cc. 278, 428; 1992, c. 604; 1994, cc. 612, 659, 688, 720, 841, 945; 2000, c. 423; 2002, c. 800; 2010, c. 682; 2020, cc. 10, 759.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

As to release of accused on promise to appear, see § 19.2-123 .

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 68 L, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of §§ 53.1-131 through 53.1-131.3 , Code of Virginia, local and regional jails may charge inmates participating in inmate work programs a reasonable daily amount, not to exceed the actual daily cost, to operate the program.”

The 2000 amendments.

The 2000 amendment by c. 423 substituted “Class 1” for “Class 2” in subsection E.

The 2002 amendments.

The 2002 amendment by c. 800 deleted “office of the” preceding “sheriff” in the first sentence of subsection A; in subsection C, deleted “or the administrator of a local or regional jail” following the first occurrence of “sheriff,” and deleted “office of the” preceding the second occurrence of “sheriff”; in the first sentence in subsection E, deleted “or the administrator of a local or regional jail” following “sheriff” and substituted “is” for “shall be” preceding “guilty”; and added subsection I.

The 2010 amendments.

The 2010 amendment by c. 682, in subsection A, inserted “or failure to pay child support pursuant to a court order” in the first sentence, and inserted “or, as appropriate, in a court-ordered intensive case monitoring program for child support” in the next-to-last sentence; and inserted “including a court-ordered intensive case monitoring program for child support” in subsection E.

The 2020 amendments.

The 2020 amendment by c. 10, in the first sentence of subsection G, substituted “may charge” for “shall charge” and “which shall be used” for “to pay.”

The 2020 amendment by c. 759, in subsection D, added “and the Director may prescribe rules to govern home/electronic incarceration programs operated under the supervision of a Department of Corrections probation and parole district office established pursuant to § 53.1-141 ”; and rewrote the last paragraph of subsection H, which read: “The Board of Corrections shall promulgate regulations governing the receipt of wages paid to persons participating in such programs, the withholding of payments and the disbursement of appropriate funds.”

Law Review.

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

Research References.

Virginia Forms (Matthew Bender). No. 9-2608 Order for Home/Electronic Incarceration.

Michie’s Jurisprudence.

For related discussion, see 5B M.J. Criminal Procedure, § 78.

CASE NOTES

Construction with other statute. —

Section 53.1-131.2 applied only to a trial court’s use of a home/electronic incarceration program as a condition of bail “pending trial” and “as a condition of probation” and did not apply to or prohibit the use electronic home monitoring as a condition of bail pending appeal. Section 19.2-319 gave the trial court court broad discretion in determining whether and under what circumstances to grant bail pending appeal. Staton v. Commonwealth, 2001 Va. App. LEXIS 673 (Va. Ct. App. Dec. 11, 2001).

Electronic incarceration and the Fourth Amendment. —

Home of a participant in an electronic incarceration program was not the functional equivalent of a jail or prison for purposes of the Fourth Amendment, resulting in the loss of defendant’s constitutional protection against unreasonable searches and seizures, where conditions of probation did not waive constitutional guarantees. Hence, in exercising their right to visit defendant’s home, officers could reasonably look around to ensure their safety; but such inspection did not justify a full search of the premises. Megel v. Commonwealth, 262 Va. 531 , 551 S.E.2d 638, 2001 Va. LEXIS 108 (2001).

Sheriff’s decision on electronic incarceration not ripe for adjudication. —

Whether a sheriff properly placed defendant on home electronic monitoring was not ripe for adjudication as the sheriff had never had an opportunity to decide whether the sheriff had statutory authority to place defendant, who was serving a mandatory, minimum sentence under subdivision B 3 of § 46.2-357, into the home electronic monitoring program under subsection C of § 53.1-131.2 .Pilson v. Commonwealth, 52 Va. App. 442, 663 S.E.2d 562, 2008 Va. App. LEXIS 359 (2008).

Not applicable to mandatory minimum incarceration. —

A person convicted under a statute requiring a mandatory minimum incarceration period is ineligible for electronic incarceration for the duration of her mandatory sentence. The option is only available where the court retains the authority to suspend the sentence on condition of probation. Cuffee-Smith v. Commonwealth, 39 Va. App. 476, 574 S.E.2d 294, 2002 Va. App. LEXIS 771 (2002).

Defendant was not entitled to serve a 90-day mandatory minimum sentence on electronic home monitoring upon conviction of driving under the influence, third offense, under subdivision C 1 of § 18.2-270 , because the mandatory minimum could not have been served on probation or suspended and, thus, electronic home monitoring was not available. McNeil v. Commonwealth, 2009 Va. App. LEXIS 427 (Va. Ct. App. Sept. 29, 2009).

CIRCUIT COURT OPINIONS

Participation in program not equivalent to probation. —

Where defendant was serving the remainder of an active sentence under a Home/Electronic Incarceration program, defendant was not on probation and thus could not be sanctioned for a probation violation. Commonwealth v. Noe, 61 Va. Cir. 125, 2003 Va. Cir. LEXIS 152 (Charlottesville Feb. 3, 2003).

Not applicable to mandatory minimum incarceration. —

Defendant was convicted of assaulting a police officer in violation of § 18.2-57 , which carried a mandatory minimum term of six months; probation could not be imposed during this period. Therefore, she was not eligible for electronic incarceration under § 53.1-131.2 .Commonwealth v. Wright, 72 Va. Cir. 215, 2006 Va. Cir. LEXIS 220 (Fairfax County Nov. 1, 2006).

OPINIONS OF THE ATTORNEY GENERAL

Sheriff has statutory authority to place a prisoner on home/electronic incarceration

while the prisoner is serving a mandatory minimum sentence. See opinion of Attorney General to The Honorable John R. Newhart, Sheriff, City of Chesapeake, 06-088 (12/21/06).

§ 53.1-131.3. Payment of costs associated with prisoners’ keep.

Any sheriff or jail superintendent may establish a program to charge inmates a reasonable fee, not to exceed $3 per day, to defray the costs associated with the prisoners’ keep. The Board shall develop a model plan and adopt regulations for such program, and shall provide assistance, if requested, to the sheriff or jail superintendent in the implementation of such program. Such funds shall be retained in the locality where the funds were collected and shall be used for general jail purposes; however, in the event the jail is a regional jail, funds collected from any such fee shall be retained by the regional jail. Any person jailed for an offense they are later acquitted for shall be refunded any such fees paid during their incarceration.

History. 2003, c. 860; 2009, c. 842; 2010, c. 548.

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 68 L, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of §§ 53.1-131 through 53.1-131.3 , Code of Virginia, local and regional jails may charge inmates participating in inmate work programs a reasonable daily amount, not to exceed the actual daily cost, to operate the program.”

The 2009 amendments.

The 2009 amendment by c. 842 substituted “$3 per day” for “$1 per day” in the first sentence, added the language beginning “however, in the event” to the end of the third sentence and added the last sentence.

The 2010 amendments.

The 2010 amendment by c. 548 substituted “retained by the regional jail” for “credited to the participating locality whose inmate was charged the fee” in the next-to-last sentence.

Michie’s Jurisprudence.

For related discussion, see 14B M.J. Prisons and Prisoners, § 2.

CASE NOTES

Constitutionality. —

Federal district court rejected a pretrial detainee’s argument that § 53.1-131.3 violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution because it allowed local and regional jails to collect a fee of up to $1 per day from inmates who were confined in those facilities, but did not allow the Virginia Department of Corrections (VDOC) to collect the same fee from inmates who were confined in facilities operated by the VDOC. Slade v. Hampton Roads Reg'l Jail, 303 F. Supp. 2d 779, 2004 U.S. Dist. LEXIS 2566 (E.D. Va. 2004), aff'd, 407 F.3d 243, 2005 U.S. App. LEXIS 8070 (4th Cir. 2005).

One dollar per day charge to pretrial detainees imposed under § 53.1-131.3 did not violate the detainees’ due process rights under the Fourteenth Amendment since its express purpose was not to punish, but served the legitimate governmental interest of defraying the costs associated with the detainees’ keep. The charge was not excessive for that goal. Slade v. Hampton Rds. Reg'l Jail, 407 F.3d 243, 2005 U.S. App. LEXIS 8070 (4th Cir. 2005).

Fee charged for room and board did not violate constitutional rights. —

The court dismissed for failure to state a claim an inmate’s 42 U.S.C.S. § 1983 complaint, alleging that his constitutional rights were violated because a city jail charged him one dollar per day as a room and board fee, pursuant to § 53.1-131.3 , because: (1) the attack on the fee did not implicate nor establish the basic elements of an Eighth Amendment cruel and unusual punishment claim; (2) the fee was neither a “fine” nor “excessive”; (3) the inmate alleged no facts that supported the basic elements of an equal protection claim or established that the inmate received less procedural due process than what was constitutionally required in the circumstances; and (4) even assuming the fee was of constitutional significance, the fee was reasonably related to the promotion of legitimate penological interest. Waters v. Bass, 304 F. Supp. 2d 802, 2004 U.S. Dist. LEXIS 2295 (E.D. Va. 2004).

§ 53.1-132. Furloughs from local work release programs; penalty for violations.

The director of any work release program authorized by § 53.1-131 may, subject to rules and regulations prescribed by the Board, extend the limits of confinement of any offender participating in a work release program that is subject to the director’s authority to permit the offender a furlough for the purpose of visiting his home or family. If such offender is participating in a work release program under the supervision of the administrator of a regional jail and the furlough would extend the limits of confinement of the offender to a locality not served by that regional jail, then notice of the furlough shall be provided to the sheriff of such locality. Such furlough shall be for a period to be prescribed by the director, not to exceed three days. The time during which an offender is on furlough shall not be counted as time served against any sentence, and during any furlough, no earned sentence credit as defined in § 53.1-116 , good conduct allowance or credits, or any other reduction of sentence shall accrue.

Any offender who, without proper authority or without just cause, fails to remain within the limits of confinement set by the director hereunder, or fails to return within the time prescribed to the place designated by the director in granting such authority, shall be guilty of a Class 1 misdemeanor. An offender who is found guilty of a Class 1 misdemeanor in accordance with this section shall be ineligible for further participation in a work release program during his current term of confinement.

History. Code 1950, § 53-166.2; 1980, c. 566; 1982, c. 636; 2000, c. 423; 2003, c. 846; 2020, c. 4.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2000 amendments.

The 2000 amendment by c. 423 substituted “Class 1” for “Class 2” in the second paragraph in two places.

The 2003 amendments.

The 2003 amendment by c. 846 added the last sentence of the first paragraph.

The 2020 amendments.

The 2020 amendment by c. 4 inserted the second sentence in the first paragraph, and made a stylistic change.

§ 53.1-133. Treatment of prisoner with contagious disease.

Upon application of the person in charge of a local correctional facility, if that application is affirmed by the physician serving such facility, a judge of a circuit court is authorized to have removed from any correctional facility within his jurisdiction any person confined therein who has contracted any contagious or infectious disease dangerous to the public health. Such persons shall be removed to some other place designated by the judge. When any person is so removed, he shall be safely kept and receive proper care and attention including medical treatment. As soon as he recovers his health, he shall be returned to the correctional facility from which he was moved, unless the term of his imprisonment has expired, in which event he shall be discharged, but not until all danger of his spreading contagion has passed. Expenses incurred under and by reason of this section shall be paid as provided by law.

History. Code 1950, § 53-135.2; 1979, c. 109; 1982, c. 636.

§ 53.1-133.01. Medical treatment for prisoners.

Any sheriff or superintendent may establish a medical treatment program for prisoners in which prisoners participate and pay towards a portion of the costs thereof. The State Board of Local and Regional Jails shall develop a model plan and promulgate regulations for such program, and shall provide assistance, if requested, to the sheriff or superintendent in the implementation of a program.

History. 1994, c. 694; 2020, c. 759.

The number of this section was assigned by the Virginia Code Commission, the number in the 1994 act having been 53.1-133.1 .

The 2020 amendments.

The 2020 amendment by c. 759 substituted “The State Board of Local and Regional Jails” for “The Board of Corrections” in the second sentence.

§ 53.1-133.01:1. Payment for bodily injury.

Each jail superintendent or sheriff who operates a correctional facility is authorized to establish administrative procedures according to regulations promulgated by the Board for recovering from an inmate the cost for medical treatment of a physical injury that is inflicted intentionally on any person, including the inmate himself, by the inmate. Such administrative procedures shall ensure that the inmate is afforded due process.

History. 1997, c. 125; 2003, cc. 928, 1019.

The 2003 amendments.

The 2003 amendment by cc. 928 and 1019 inserted “including the inmate himself.”

Michie’s Jurisprudence.

For related discussion, see 14B M.J. Prisons and Prisoners, § 10.

§ 53.1-133.02. Notice to be given upon prisoner release, escape, etc.

Prior to the release, including work release, or discharge of any prisoner, and as soon as practicable following his transfer to a prison, a different jail facility, or any other correctional or detention facility, his escape, or the change of his name, the sheriff or superintendent who has custody of the prisoner shall give notice of any such occurrence, delivered by first-class mail or by telephone or both, to any victim of the offense as defined in § 19.2-11.01 who, in writing, requests notice or to any person designated in writing by the victim. The notice shall be given at least 15 days prior to release or discharge and as soon as practicable following a transfer, an escape, or a change of name. Notice shall be given using the address and telephone number provided in writing by the victim. For the purposes of this section, “prisoner” means a person sentenced to serve more than 30 days of incarceration or detention. Such notification may be provided through the Virginia Statewide VINE (Victim Information and Notification Everyday) System or other similar electronic or automated system.

No civil liability shall attach for a failure to give notice as provided in this section.

History. 1995, c. 687; 2007, cc. 94, 109; 2015, c. 101.

The 2007 amendments.

The 2007 amendments by cc. 94 and 109 are identical, and added the last sentence in the first paragraph.

The 2015 amendments.

The 2015 amendment by c. 101 substituted “and as soon as practicable following” for “or” and deleted “or upon” preceding “his escape” in the first sentence, substituted “discharge and” for “transfer, or” and inserted “a transfer” in the second sentence, and made minor stylistic changes.

§ 53.1-133.03. Exchange of medical and mental health information and records.

  1. Whenever a person is committed to a local or regional correctional facility, the following shall be entitled to obtain medical and mental health information and records concerning such person from a health care provider, even when such person does not provide consent or consent is not readily obtainable:
    1. The person in charge of the facility, or his designee, when such information and records are necessary (i) for the provision of health care to the person committed, (ii) to protect the health and safety of the person committed or other residents or staff of the facility, or (iii) to maintain the security and safety of the facility. Such information and records of any person committed to jail and transferred to another correctional facility may be exchanged among administrative personnel of the correctional facilities involved and of the administrative personnel within the holding facility when there is reasonable cause to believe that such information is necessary to maintain the security and safety of the holding facility, its employees, or prisoners. The information exchanged shall continue to be confidential and disclosure shall be limited to that necessary to ensure the security and safety of the facility.
    2. Members of the Parole Board or its designees, as specified in § 53.1-138 , in order to conduct the investigation required under § 53.1-155 .
    3. Probation and parole officers and local probation officers for use in parole and probation planning, release, and supervision.
    4. Officials of the facilities involved and officials within the holding facility for the purpose of formulating recommendations for treatment and rehabilitative programs; classification, security and work assignments; and determining the necessity for medical, dental and mental health care, treatment and other such programs.
    5. Medical and mental health hospitals and facilities, both public and private, including community services boards and health departments, for use in treatment while committed to jail or a correctional facility while under supervision of a probation or parole officer.
  2. Substance abuse records subject to federal regulations, Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. § 2.11 et seq., shall not be subject to the provisions of this section. The disclosure of results of a test for human immunodeficiency virus shall not be permitted except as provided in §§ 32.1-36.1 and 32.1-116.3 .
  3. The release of medical and mental health information and records to any other agency or individual shall be subject to all regulations promulgated by the State Board of Local and Regional Jails that govern confidentiality of such records. Medical and mental health information concerning a prisoner that has been exchanged pursuant to this section may be used only as provided herein and shall otherwise remain confidential and protected from disclosure.
  4. Nothing contained in this section shall prohibit the release of records to the Department of Health Professions or health regulatory boards consistent with Subtitle III (§ 54.1-2400 et seq.) of Title 54.1.
  5. Except for any information and records not subject to this section or not permitted to be disclosed pursuant to subsection B, any health care provider as defined in § 32.1-127.1:03 who has provided services within the last two years to a person committed to a local or regional correctional facility shall, upon request by the local or regional correctional facility, disclose to the local or regional correctional facility where the person is committed any information necessary to ensure the continuity of care of the person committed. Any health care provider who discloses medical and mental health information and records pursuant to this section shall be immune from civil liability resulting from such disclosure, including any liability under the federal Health Insurance Portability and Accountability Act (42 U.S.C. § 1320d et seq.), absent bad faith or malicious intent.

History. 1997, c. 443; 2018, c. 165; 2019, cc. 702, 827; 2020, cc. 759, 836, 837.

Editor’s note.

Acts 2019, c. 827, cl. 3 provides: “That the Chairman of the Board of Corrections shall convene a work group to include representatives of sheriffs, superintendents of regional correctional facilities, community services boards, the Department of Behavioral Health and Developmental Services, the Department of Medical Assistance Services, the Virginia Association of Counties, the Virginia Municipal League, and such other stakeholders as the Director shall deem appropriate to determine the cost of implementing provisions of this act. The work group shall report its findings and conclusions to the Governor and the Chairmen of the House Committee on Appropriations, the House Committee for Courts of Justice, the House Committee on Health, Welfare and Institutions, the Senate Committee on Finance, the Senate Committee for Courts of Justice, the Senate Committee on Education and Health, and the Senate Committee on Rehabilitation and Social Services by November 1, 2019.”

The 2018 amendments.

The 2018 amendment by c. 165, in the first paragraph, inserted “whenever a person is committed to a local or regional correctional facility, the person in charge of the facility or his designee shall be entitled to obtain medical records concerning such person from a health care provider. In addition.”

The 2019 amendments.

The 2019 amendment by c. 702 inserted “and local probation officers” in subdivision 3.

The 2019 amendment by c. 827 added the designations for subsections A through D; rewrote subsection A and subdivision A 1, which read: “Notwithstanding any other provision of law relating to disclosure and confidentiality of patient records maintained by a health care provider, whenever a person is committed to a local or regional correctional facility, the person in charge of the facility or his designee shall be entitled to obtain medical records concerning such person from a health care provider. In addition, medical and mental health information and records of any person committed to jail, and transferred to another correctional facility, may be exchanged among the following: 1. Administrative personnel of the correctional facilities involved and of the administrative personnel within the holding facility when there is reasonable cause to believe that such information is necessary to maintain the security and safety of the holding facility, its employees, or prisoners. The information exchanged shall continue to be confidential and disclosure shall be limited to that necessary to ensure the safety and security of the facility”; in subsection D, deleted “of the Code of Virginia” at the end; and made stylistic changes.

The 2020 amendments.

The 2020 amendment by c. 759 substituted “State Board of Local and Regional Jails” for “Board of Corrections” in subsection C in the first sentence.

The 2020 amendments by cc. 836 and 837 are identical, and added subsection E.

Michie’s Jurisprudence.

For related discussion, see 14B M.J. Prisons and Prisoners, § 8.

§ 53.1-133.04. Medical and mental health treatment of prisoners incapable of giving consent.

  1. The sheriff or administrator in charge of a local or regional correctional facility or his designee may petition the circuit court or any district court judge or any special justice, as defined in § 37.2-100 , herein referred to as the court, of the county or city in which the prisoner is located for an order authorizing treatment of a prisoner confined in the local or regional correctional facility. Upon filing the petition, the petitioner or the court shall serve a certified copy of the petition to the person for whom treatment is sought and, if the identity and whereabouts of the person’s next of kin are known, to the person’s next of kin. The court shall authorize such treatment in a facility designated by the sheriff or administrator upon finding, on the basis of clear and convincing evidence, that the prisoner is incapable, either mentally or physically, of giving informed consent to such treatment; that the prisoner does not have a relevant advanced directive, guardian, or other substitute decision maker; that the proposed treatment is in the best interests of the prisoner; and that the jail has sufficient medical and nursing resources available to safely administer the treatment and respond to any adverse side effects that might arise from the treatment. The facility designated for treatment by the sheriff or administrator may be located within a local or regional correctional facility if such facility is licensed to provide the treatment authorized by the court order.
  2. Prior to the court’s authorization of such treatment, the court shall appoint an attorney to represent the interests of the prisoner. Evidence shall be presented concerning the prisoner’s condition and proposed treatment, which evidence may, in the court’s discretion and in the absence of objection by the prisoner or the prisoner’s attorney, be submitted by affidavit.
  3. Any order authorizing treatment pursuant to subsection A shall describe the treatment authorized and authorize generally such examinations, tests, medications, and other treatments as are in the best interests of the prisoner but may not authorize nontherapeutic sterilization, abortion, or psychosurgery. Such order shall require the licensed physician, psychiatrist, clinical psychologist, professional counselor, or clinical social worker acting within his area of expertise who is treating the prisoner to report to the court and the prisoner’s attorney any change in the prisoner’s condition resulting in restoration of the prisoner’s capability to consent prior to completion of the authorized treatment and related services. Upon receipt of such report, the court may enter such order withdrawing or modifying its prior authorization as it deems appropriate. Any petition or order under this section may be orally presented or entered, provided that a written order is subsequently executed.
  4. Prior to authorizing treatment pursuant to this section, the court shall find that there is no available person with legal authority under the Health Care Decisions Act (§ 54.1-2981 et seq.) or under other applicable law to authorize the proposed treatment.
  5. Any order of a judge under subsection A may be appealed de novo within 10 days to the circuit court for the jurisdiction where the prisoner is located, and any order of a circuit court hereunder, either originally or on appeal, may be appealed within 10 days to the Court of Appeals, which shall give such appeal priority and hear the appeal as soon as possible.
  6. Whenever the director of any hospital or facility reasonably believes that treatment is necessary to protect the life, health, or safety of a prisoner, such treatment may be given during the period allowed for any appeal unless prohibited by order of a court of record wherein the appeal is pending.
  7. Upon the advice of a licensed physician, psychiatrist, or clinical psychologist acting within his area of expertise who has attempted to obtain consent and upon a finding of probable cause to believe that a prisoner is incapable, due to any physical or mental condition, of giving informed consent to treatment and that the medical standard of care calls for testing, observation, or other treatment within the next 12 hours to prevent death, disability, or a serious irreversible condition, the court or, if the court is unavailable, a magistrate shall issue an order authorizing temporary admission of the prisoner to a hospital or other health care facility and authorizing such testing, observation, or other treatment. Such order shall expire after a period of 12 hours unless extended by the court as part of an order authorizing treatment under subsection A.
  8. Any licensed health or mental health professional or licensed facility providing services pursuant to the court’s or magistrate’s authorization as provided in this section shall have no liability arising out of a claim to the extent that it is based on lack of consent to such services, except with respect to injury or death resulting from gross negligence or willful and wanton misconduct. Any such professional or facility providing services with the consent of the prisoner receiving treatment shall have no liability arising out of a claim to the extent that it is based on lack of capacity to consent, except with respect to injury or death resulting from gross negligence or willful and wanton misconduct, if a court or a magistrate has denied a petition hereunder to authorize such services and such denial was based on an affirmative finding that the prisoner was capable of making an informed decision regarding the proposed services.
  9. Nothing in this section shall be deemed to limit or repeal any common law rule relating to consent for medical treatment or the right to apply or the authority conferred by any other applicable statute or regulation relating to consent.

History. 2019, c. 809.

Cross references.

As to jurisdiction of Court of Appeals over petitions for appeal of orders involving involuntary treatment of prisoners, see § 17.1-406 .

As to finality of decisions of Court of Appeals involving involuntary treatment of prisoners, see § 17.1-410 .

§ 53.1-133.05. Place of hearing on medical or mental health treatment of prisoners incapable of giving consent; fees and expenses.

  1. Any hearing held by a court pursuant to § 53.1-133.04 may be held in any courtroom available within the county or city wherein the prisoner is located or any appropriate place that may be made available by the sheriff or administrator in charge of a local or regional correctional facility and approved by the judge. Nothing herein shall be construed as prohibiting holding the hearing on the grounds of a correctional facility or a hospital or a facility for the care and treatment of individuals with mental illness.
  2. Any special justice, as defined in § 37.2-100 , and any district court substitute judge who presides over hearings pursuant to the provisions of § 53.1-133.04 shall receive a fee as provided in § 37.2-804 for each proceeding under § 53.1-133.04 and his necessary mileage. However, if a commitment hearing under § 19.2-169.6 and the proceeding under § 53.1-133.04 are combined for hearing or are heard on the same day, only one fee shall be allowed.
  3. Every physician or clinical psychologist who is not regularly employed by the Commonwealth who is required to serve as a witness for the Commonwealth in any proceeding under § 53.1-133.04 shall receive a fee as provided in § 37.2-804 . Other witnesses regularly summoned before a judge shall receive such compensation for their attendance and mileage as is allowed witnesses summoned to testify before grand juries.
  4. Every attorney appointed under § 53.1-133.04 shall receive a fee as provided in § 37.2-804 for each proceeding under § 53.1-133.04 for which he is appointed. However, if a commitment hearing under § 19.2-169.6 and the proceeding under § 53.1-133.04 are combined for hearing or are heard on the same day, only one fee shall be allowed.
  5. Except as hereinafter provided, all expenses incurred, including the fees, attendance, and mileage aforesaid, shall be paid by the Commonwealth. Any such fees, costs, and expenses incurred in connection with a proceeding under § 53.1-133.04 , when paid by the Commonwealth, shall be recoverable by the Commonwealth from the prisoner who is the subject of the examination, hearing, or proceeding or from his estate. No such fees or costs shall be recovered, however, from the prisoner or his estate when no good cause for his admission exists or when the recovery would create an undue financial hardship.

History. 2019, c. 809.

Article 8. Jail Industry Programs.

§ 53.1-133.1. Definition.

As used in this article unless the context requires otherwise or it is otherwise provided, the term “jail industry program” means a program established by a sheriff or jail superintendent to provide employment and wage earning opportunities for persons under his custody. The program may include the production of goods and provision of services which will be marketed outside the facility.

History. 1992, c. 859; 1995, c. 756.

§ 53.1-133.2. Establishment of jail industry programs.

The sheriff or jail superintendent operating a local correctional facility, with the approval of the local governing body, jail farm board, or regional jail or jail farm board or regional jail authority, as the case may be, is authorized to establish a jail industry program within the facility he administers or on public property or works owned, leased or operated by the county, city, town or federal government, whether the same be located within such county, city or town or elsewhere. If elsewhere, the governing body of the locality where the proposed jail industry program is to be established shall approve the location of the program. Any such program shall be subject to the provisions of this article and shall not be established, operated, maintained or otherwise supported by state funds except as provided in § 53.1-133.6 .

History. 1992, c. 859; 1995, c. 756.

§ 53.1-133.3. Eligibility to participate.

Any person under the custody of a sheriff or jail superintendent shall be eligible to participate in the jail industry program on a voluntary basis without regard to whether that person is awaiting disposition of charges or serving a previously imposed sentence. The sheriff or jail superintendent may establish additional eligibility criteria for participation in the program.

History. 1992, c. 859; 1995, c. 756.

§ 53.1-133.4. Participant compensation.

  1. The sheriff or jail superintendent shall establish an amount to be allowed each jail industry program participant for each day of labor satisfactory to the sheriff or jail superintendent. The allowance shall be paid to the sheriff or jail superintendent or his designee. Distribution of a participant’s allowance shall be in the same manner as provided for distribution of wages earned in a work release program pursuant to § 53.1-131 . In addition, participants working in the jail industry program may have payroll deductions withheld and may be required by the sheriff, jail superintendent or his designee to contribute to victim restitution funds and to operating costs associated with the jail industry program. The total deductions must not total more than eighty percent of the participant’s gross wages. The amount so deducted shall be deposited in the jail industries revenue fund and the sheriff, jail superintendent or his designee shall make the appropriate distributions of the money withheld. Any balance remaining at the conclusion of the participant’s confinement shall be paid to the participant upon his release.
  2. In addition, the sheriff or jail superintendent may establish a system of pay incentives for jail industry program participants. The system may provide for the payment of a bonus to any participant who is assigned to employment in any position of responsibility or who performs his job in an exemplary manner.

History. 1992, c. 859; 1995, c. 756.

§ 53.1-133.5. Disposition of money collected and payment of expenses for jail industry program.

  1. Any county, city or town that implements a jail industry program shall authorize the sheriff, jail superintendent or his designee to establish a separate fund for the operation of the program. This fund may be a special revenue fund with continuing authority to receive income and pay expenses associated with the jail industry program. The county, city, or regional jail authority shall audit the jail industry’s special revenue fund on an annual basis.
  2. The sheriff or jail superintendent shall purchase at prices as low as reasonably possible all materials or other items used in the jail industry program as may be necessary. Invoices or itemized statements of account from each vendor of such materials and other items shall be obtained by the sheriff or jail superintendent and presented to the governing body of the county or city or, in the case of a regional jail or jail farm, the regional jail authority or, if none, that body responsible for the fiscal management of the regional jail or jail farm. The local governing body may require all such purchases to be made pursuant to local purchasing regulations.

History. 1992, c. 859; 1995, c. 756.

§ 53.1-133.6. Restriction on sale of jail industry program goods and services; print shop.

  1. Articles produced or manufactured and services provided by participants in jail industry programs may be disposed of by the sheriff or jail superintendent by sale only to municipal and county agencies in Virginia and to federal, state and local public agencies within or without the Commonwealth. Except as otherwise provided, no articles produced or manufactured nor services provided by prisoners may be bought, sold or acquired by exchange on the open market.
  2. The products of any printing shop in a jail industry program shall be sold only to the departments, institutions and agencies of the Commonwealth which are supported in whole or in part with funds from the state treasury and to offices or agencies of the counties, cities and towns of the Commonwealth. Such products shall not be sold on the open market.

History. 1992, c. 859.

§ 53.1-133.7. Sale of artistic products.

Subject to such rules as he may prescribe, the sheriff or jail superintendent may permit participants in jail industry programs to sell to the public artistic products personally crafted by the participants. Such artistic products shall include, but are not limited to, paintings, pottery and leatherwork.

History. 1992, c. 859.

§ 53.1-133.8. Purchases by agencies, localities, and certain nonprofit organizations.

Articles and services produced or manufactured by participants in jail industry programs:

  1. May be purchased by all departments, institutions, and agencies of the Commonwealth that are supported in whole or in part with funds from the state treasury for their use or the use of persons whom they assist financially, provided such purchase is not in conflict with the provisions of Article 3 (§ 53.1-41 et seq.) of Chapter 2.
  2. May be purchased by any county, district of any county, city, or town and by any nonprofit, volunteer emergency medical services agencies, fire departments, sheltered workshops, and community service organizations.

History. 1992, c. 859; 2015, cc. 502, 503.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical, and deleted “of this title” at the end of subdivision 1; substituted “emergency medical services agencies” for “lifesaving or first aid crews, rescue squads” in subdivision 2; and made minor stylistic changes.

§ 53.1-133.9. Charges; advertisement and marketing.

  1. The sheriff or jail superintendent, or his designee, shall establish charges for articles produced or manufactured and services provided by the jail industry program that will, in his judgment, defray the administration, operation and maintenance costs and make allowances for depreciation, return on capital and contingencies.
  2. The sheriff or jail superintendent, or his designee, may advertise and market articles produced or manufactured and services provided by the jail industry program in a manner that will, in his judgment, allow maximum work opportunities for program participants while assuring that the program will be self-supporting, provided such advertising and marketing do not violate other provisions of law.

History. 1992, c. 859.

§ 53.1-133.10. (See Editor’s note) Compact; transport of prisoners to and from medical facilities across state boundaries; Governor to execute.

The Governor is authorized and requested to execute, on behalf of the Commonwealth, with any other state or states legally joining therein a compact that shall be in form substantially as follows:

The compacting states solemnly agree that:

ARTICLE I.

The party states, desiring by common action to efficiently utilize and provide emergency medical, dental, and psychiatric care for prisoners of local correctional facilities, declare that it is the policy of each of the party states to cooperate with one another to serve the best interests of the prisoners and of the state and local governments in the convenient and economical provision of these services. The purpose of this compact is to provide for the mutual recognition of the control and authority over prisoners during transport to and from medical, dental, and psychiatric facilities across state boundaries.

ARTICLE II.

As used in this compact, unless the context clearly requires otherwise:

  1. “State” means a state of the United States, the United States of America, a territory or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.
  2. “Sending state” means a state party to this compact in which a prisoner in need of medical, dental, or psychiatric services is incarcerated.
  3. “Receiving state” means a state party to this compact in which is located a medical, dental, or psychiatric facility.
  4. “Prisoner” means a male or female offender who is committed under sentence to or confined in a local correctional facility.
  5. “Local correctional facility” means any penal or correctional facility or any jail, regional jail, jail farm, or other place used for the detention or incarceration of adult offenders that is owned, maintained, or operated by any political subdivision or combination of subdivisions of a state or a local government of a state.ARTICLE III.

    Each party state agrees to extend all necessary authority to law-enforcement or corrections officers from a sending state while such officers have in their custody a prisoner for the purpose of escorting the prisoner to and from a medical, dental, or psychiatric facility located in the receiving state.

ARTICLE IV.

This compact shall enter into force and become effective and binding upon the states so acting when it has been enacted into law by any two states. Thereafter, this compact shall enter into force and become effective and binding as to any other of said states upon similar action by such state.

ARTICLE V.

This compact shall continue in force and remain binding upon a party state until the party state has enacted a statute repealing the same and providing for the sending of formal written notice of withdrawal from the compact to the appropriate official of all other party states. No actual withdrawal shall take effect until one year after the notice provided in said statute has been sent. Such withdrawal shall not relieve the withdrawing state from its obligations assumed hereunder prior to the effective date of withdrawal. Before the effective date of withdrawal, a withdrawing state shall remove to its territory, at its own expense, such inmates as it may have confined pursuant to the provisions of this compact.

ARTICLE VI.

The provisions of this compact shall be liberally construed and shall be severable. If any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this compact is held contrary to the constitution of any state participating therein, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

History. 2013, c. 138.

Editor’s note.

The compact will take effect pursuant to Article IV of the compact.

At the direction of the Virginia Code Commission, substituted “Compact; transport of prisoners to and from medical facilities across state boundaries; Governor to execute” for “Governor to execute; form of compact” in the section heading.

Chapter 4. Probation and Parole.

Article 1. Administration Generally.

Michie’s Jurisprudence.

For related discussion, see 14A M.J. Pardon, Probation and Parole, §§ 4, 5.

§ 53.1-134. Creation of Parole Board; appointment of members.

There shall be a Parole Board which shall consist of up to five members appointed by the Governor and subject to confirmation by the General Assembly, if in session when such appointment is made, and if not in session, then at its next succeeding session. At least one member of the Parole Board shall be a representative of a crime victims’ organization or a victim of crime as defined in subsection B of § 19.2-11.01 .

The members of the Parole Board shall serve at the pleasure of the Governor.

History. Code 1950, §§ 53-230, 53-231, 53-232, 53-233, 53-234, 53-235, 53-236; 1966, c. 638; 1970, c. 648; 1973, c. 253; 1974, cc. 44, 45; 1975, c. 316; 1982, c. 636; 1984, c. 584; 1997, cc. 795, 883; 2002, c. 569.

Editor’s note.

Acts 1997, cc. 795 and 883, cl. 2 provides: “That nothing in this act shall be construed to require the removal or replacement of any member of the Criminal Justice Services Board, the Virginia Criminal Sentencing Commission or the Parole Board at any time prior to the normal expiration of his term. Nothing in this act shall prohibit the reappointment of any member who is otherwise eligible for reappointment solely because such member is not a representative of a crime victims’ organization or a victim of crime.”

The 1997 amendments.

The 1997 amendments by cc. 795 and 883 are identical, and added the second sentence in the first paragraph.

The 2002 amendments.

The 2002 amendment by c. 569 deleted “terms; vacancies” from the end of the section catchline; inserted “up to” in the first paragraph; in the second paragraph, deleted the last three sentences, which read: “Initial appointments to the Parole Board in the year 1982 shall be for the following terms: two for a one-year term, two for a two-year term, and one for a four-year term. Thereafter, all appointments shall be for terms of four years each. Appointments to fill vacancies shall be made for the unexpired terms.”; and deleted the third paragraph, which read: “The term ‘Board’ as used in this chapter shall mean the Virginia Parole Board.”

Law Review.

For article on the parole process in Virginia, see 16 U. Rich. L. Rev. 505 (1982).

§ 53.1-135. Chairman; Vice-Chairman of Board.

The Governor shall designate one of the members so appointed as Chairman of the Board. The Board may elect one of its members as Vice-Chairman; in the absence of the Chairman, he shall have the same duties as are conferred upon the Chairman. The Chairman shall be a full-time state employee. The Governor may designate no more than two other members of the Board as full-time state employees. Members of the Board not designated full-time state employees shall be considered part-time state employees.

History. Code 1950, §§ 53-234; 53-235; 1966, c. 638; 1970, c. 648; 1973, c. 253; 1975, c. 316; 1978, c. 552; 1982, c. 636; 1988, c. 823; 1992, c. 144; 2002, c. 569.

The 2002 amendments.

The 2002 amendment by c. 569 added the last three sentences.

§ 53.1-136. (Effective until July 1, 2022) Powers and duties of Board; notice of release of certain inmates.

In addition to the other powers and duties imposed upon the Board by this article, the Board shall:

  1. Adopt, subject to approval by the Governor, general rules governing the granting of parole and eligibility requirements, which shall be published and posted for public review;
  2. Adopt, subject to approval by the Governor, rules providing for the granting of parole to those prisoners who are eligible for parole pursuant to § 53.1-165.1 on the basis of demonstrated maturity and rehabilitation and the lesser culpability of juvenile offenders;
    1. Release on parole for such time and upon such terms and conditions as the Board shall prescribe, persons convicted of felonies and confined under the laws of the Commonwealth in any correctional facility in Virginia when those persons become eligible and are found suitable for parole, according to those rules adopted pursuant to subdivisions 1 and 2;
    2. Establish the conditions of postrelease supervision authorized pursuant to § 18.2-10 and subsection A of § 19.2-295.2 ;
    3. Notify the Department of Corrections of its decision to grant discretionary parole or conditional release to an inmate. The Department of Corrections shall set the release date for such inmate no sooner than 30 business days from the date that the Department of Corrections receives such notification from the Chairman of the Board, except that the Department of Corrections may set an earlier release date in the case of an inmate granted conditional release pursuant to § 53.1-40.02 . In the case of an inmate granted parole who was convicted of a felony and sentenced to a term of 10 or more years, or an inmate granted conditional release, the Board shall notify the attorney for the Commonwealth in the jurisdiction where the inmate was sentenced (i) by electronic means at least 21 business days prior to such inmate’s release that such inmate has been granted discretionary parole or conditional release pursuant to § 53.1-40.01 or 53.1-40.02 or (ii) by telephone or other electronic means prior to such inmate’s release that such inmate has been granted conditional release pursuant to § 53.1-40.02 where death is imminent. Nothing in this section shall be construed to alter the obligations of the Board under § 53.1-155 for investigation prior to release on discretionary parole;
    4. Provide that in any case where a person who is released on parole or postrelease supervision has been committed to the Department of Behavioral Health and Developmental Services under the provisions of Chapter 9 (§ 37.2-900 et seq.) of Title 37.2 the conditions of his parole or postrelease supervision shall include the requirement that the person comply with all conditions given him by the Department of Behavioral Health and Developmental Services and that he follow all of the terms of his treatment plan;
  3. Revoke parole and any period of postrelease and order the reincarceration of any parolee or felon serving a period of postrelease supervision or impose a condition of participation in any component of the Statewide Community-Based Corrections System for State-Responsible Offenders (§ 53.1-67.2 et seq.) on any eligible parolee, when, in the judgment of the Board, he has violated the conditions of his parole or postrelease supervision or is otherwise unfit to be on parole or on postrelease supervision;
  4. Issue final discharges to persons released by the Board on parole when the Board is of the opinion that the discharge of the parolee will not be incompatible with the welfare of such person or of society;
  5. Make investigations and reports with respect to any commutation of sentence, pardon, reprieve or remission of fine, or penalty when requested by the Governor;
  6. Publish by the fifteenth day of each month a statement regarding the action taken by the Board on the parole of prisoners during the prior month. The statement shall list (i) the name of each prisoner considered for parole, (ii) the offense of which the prisoner was convicted, (iii) the jurisdiction in which such offense was committed, (iv) the amount of time the prisoner has served, (v) whether the prisoner was granted or denied parole, and (vi) the basis for the grant or denial of parole. However, in the case of a prisoner granted parole, the information set forth in clauses (i) through (vi) regarding such prisoner shall be included in the statement published in the month immediately succeeding the month in which notification of the decision to grant parole was given to the attorney for the Commonwealth and any victims; and
  7. Ensure that each person eligible for parole receives a timely and thorough review of his suitability for release on parole, including a review of any relevant post-sentencing information. If parole is denied, the basis for the denial of parole shall be in writing and shall give specific reasons for such denial to such inmate.

History. Code 1950, §§ 53-238, 53-265; 1966, c. 638; 1970, c. 648; 1973, c. 253; 1974, cc. 44, 45; 1979, c. 625; 1982, c. 636; 1990, c. 538; 2000, cc. 338, 767; 2002, c. 569; 2003, c. 132; 2005, c. 657; 2006, cc. 863, 914; 2009, cc. 813, 840; 2013, c. 708; 2020, cc. 2, 529; 2021, Sp. Sess. I, cc. 287, 545.

Editor’s note.

2021 Acts, Sp. Sess. I, c. 545, cl. 2 provides: “That the Virginia Parole Board (the Board) shall include in its monthly statements regarding actions taken by the Board on the parole of prisoners the information required by the provisions of this act amending subdivision 7 of § 53.1-136 of the Code of Virginia no later than December 15, 2021.”

The 2000 amendments.

The 2000 amendment by c. 338 inserted “or impose a condition of participation in any component of the Statewide Community-Based Corrections System for State-Responsible Offenders (§ 53.1-67.2 et seq.) on any eligible parolee” in subdivision 3.

The 2000 amendment by c. 767 redesignated former subdivision 2 as present subsection 2 (a), added subsection 2 (b), and in subdivision 3, inserted “any period of postrelease and,” inserted “or felon serving a period of postrelease supervision,” inserted “postrelease supervision,” and inserted “or on postrelease supervision.”

The 2002 amendments.

The 2002 amendment by c. 569 added subdivision 2 (c).

The 2003 amendments.

The 2003 amendment by c. 132, in paragraph 2 (c), substituted “21” for “twenty-one,” inserted “discretionary,” and substituted “10” for “ten.”

The 2005 amendments.

The 2005 amendment by c. 657 inserted “and eligibility requirements, which shall be published and posted for public review” in subdivision 1; in subdivision 2 (a), deleted “in accordance with its rules” following “parole” and inserted “according to those rules adopted pursuant to subdivision 1”; and inserted “as well as the basis for denial of parole as described in subdivision 2 (a)” in subdivision 6.

The 2006 amendments.

The 2006 amendments by cc. 863 and 914 are nearly identical, and added subdivision 2 (d).

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical and substituted “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse” twice in subdivision 2 (d).

The 2013 amendments.

The 2013 amendment by c. 708 added subdivision 7 and made a related change.

The 2020 amendments.

The 2020 amendments by cc. 2 and 529 are identical and inserted subdivision 2, and redesignated former subdivisions 2 through 7 as 3 through 8; substituted “subdivisions 1 and 2” for “subdivision 1” in subdivision 3 a; in subdivision 3 c, substituted “section” for “subsection” in the last sentence; and updated an internal reference and made stylistic changes.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 287, effective July 1, 2021, rewrote subdivision 3 c, which read: “Notify by certified mail at least 21 business days prior to release on discretionary parole of any inmate convicted of a felony and sentenced to a term of 10 or more years, the attorney for the Commonwealth in the jurisdiction where the inmate was sentenced. In the case of parole granted for medical reasons, where death is imminent, the attorney for the Commonwealth may be notified by telephone or other electronic means prior to release. Nothing in this section shall be construed to alter the obligations of the Board under § 53.1-155 for investigation prior to release.”

The 2021 amendment by Sp. Sess. I, c. 545, effective July 1, 2021, rewrote subdivision 3 c, which read: “Notify by certified mail at least 21 business days prior to release on discretionary parole of any inmate convicted of a felony and sentenced to a term of 10 or more years, the attorney for the Commonwealth in the jurisdiction where the inmate was sentenced. In the case of parole granted for medical reasons, where death is imminent, the attorney for the Commonwealth may be notified by telephone or other electronic means prior to release. Nothing in this section shall be construed to alter the obligations of the Board under § 53.1-155 for investigation prior to release”; and subdivision 7, which read: “Publish monthly a statement regarding the action taken by the Board on the parole of prisoners. The statement shall list the name of each prisoner considered for parole and indicate whether parole was granted or denied, as well as the basis for denial of parole as described in subdivision 3 a.”

The 2022 amendments.

The 2022 amendment by c. 141 in subdivision 7, in the first sentence, deleted “by the fifteenth day of each month” following “Publish” and substituted “within 30 days of such action” for “during the prior month”; in the second sentence, added clause (iv) and redesignated accordingly; substituted “(vii)” for “(vi)” in the third sentence; and made a stylistic change.

Law Review.

For article on the parole process in Virginia, see 16 U. Rich. L. Rev. 505 (1982).

For an article, “Coercion, Pop-psychology, and Judicial Moralizing: Some Proposals for Curbing Judicial Abuse of Probation Conditions,” see 57 Wash. & Lee L. Rev. 75 (2000).

CASE NOTES

Constitutionality of change in good time policy. —

The change in parole policy whereby any previously earned good time credits were revoked when a parolee’s parole was revoked constituted a change in the exercise of the parole board’s discretionary authority and was not a change in the law which could be challenged under the ex post facto clause. Warren v. Baskerville, 233 F.3d 204, 2000 U.S. App. LEXIS 28963 (4th Cir. 2000), cert. denied, 534 U.S. 831, 122 S. Ct. 76, 151 L. Ed. 2d 41, 2001 U.S. LEXIS 5732 (2001).

Due process clause not invoked. —

Neither the parole statutes nor any parole regulation has created a liberty interest in parole sufficient to invoke the due process clause. James v. Robinson, 863 F. Supp. 275, 1994 U.S. Dist. LEXIS 12962 (E.D. Va.), aff'd, 45 F.3d 426, 1994 U.S. App. LEXIS 40374 (4th Cir. 1994).

A parolee does not have a fundamental or liberty interest in a discretionary final discharge from parole. Vincent v. Warden of Dillwyn Correctional Ctr., 258 Va. 48 , 517 S.E.2d 17, 1999 Va. LEXIS 76 (1999).

Virginia law gave rise to a limited interest in consideration for parole, but not in parole release, and because a parole decision was discretionary under subdivisions 1 and 2(a) of § 53.1-136 , there was no liberty interest in parole release, even if the board consistently exercised their discretion to grant release in the past, and while parole-eligible inmates had a right to parole consideration at a specified time, the procedures required were minimal, and since plaintiff violent offender inmates’ statistics showed defendant parole board members still granted parole to violent offenders, though at lower rates, with, in over half of denials, giving reasons other than the seriousness of the offense, the inmates’ Due Process claim failed. Burnette v. Fahey, 687 F.3d 171, 2012 U.S. App. LEXIS 13925 (4th Cir. 2012).

Parole board’s policies constitutional. —

Subdivision 1 merely required the parole board to adopt, subject to approval by the Governor, general rules governing the granting of parole and eligibility requirements, which shall be published and posted for public review; because Virginia law imposed no particular decision criteria on the parole board, the inmates could not establish that the parole board failed to consider statutory factors either arbitrarily, in violation of due process, or because of the nature of their crimes, in violation of principles of equal protection. The inmates’ argument did not alter the magistrate’s conclusion that, pursuant to United States Court of Appeals for the Fourth Circuit law, the parole board’s policies did not violate the ex post facto clause or the Eighth Amendment, and thus, the court adopted the reasoning of the magistrate judge with respect to the claims advanced again in the amended complaint. Patterson v. Kaine, No. 3:08CV490, 2010 U.S. Dist. LEXIS 22649 (E.D. Va. Mar. 11, 2010).

The parole board is granted the broadest discretion to grant or deny parole. Jennings v. Parole Bd., 61 F. Supp. 2d 462, 1999 U.S. Dist. LEXIS 6190 (E.D. Va.), dismissed, 61 F. Supp. 2d 471, 1999 U.S. Dist. LEXIS 12248 (E.D. Va. 1999).

No presumption of release. —

It is clear that this section, far from creating a presumption that release will be granted, absolutely prohibits parole unless the board decides otherwise. Jennings v. Parole Bd., 61 F. Supp. 2d 462, 1999 U.S. Dist. LEXIS 6190 (E.D. Va.), dismissed, 61 F. Supp. 2d 471, 1999 U.S. Dist. LEXIS 12248 (E.D. Va. 1999).

Discretion of board not impinged by regulations. —

The regulations promulgated pursuant to this section have not impinged upon the absolute discretion of the board when acting on parole applications. James v. Robinson, 863 F. Supp. 275, 1994 U.S. Dist. LEXIS 12962 (E.D. Va.), aff'd, 45 F.3d 426, 1994 U.S. App. LEXIS 40374 (4th Cir. 1994).

Immunity from suits under 42 U.S.C. § 1983. —

The members of the Parole Board, who perform a quasi-judicial function, are immune from suits for damages under 42 U.S.C. § 1983. Franklin v. Shields, 569 F.2d 784, 1978 U.S. App. LEXIS 13217 (4th Cir. 1978) (decided under prior law).

CIRCUIT COURT OPINIONS

Due process clause not invoked. —

Inmate’s habeas petition was dismissed as he did not have a constitutional right to be conditionally released before the expiration of his valid sentence; a failure to consider the inmate for discretionary parole did not affect the lawfulness of his detention. Although an order in the inmate’s favor might secure him a parole review hearing, he would not necessarily be released. Johnson v. Va. Parole Bd., 65 Va. Cir. 149, 2004 Va. Cir. LEXIS 142 (Fairfax County June 21, 2004).

§ 53.1-136. (Effective July 1, 2022) Powers and duties of Board; notice of release of certain inmates.

In addition to the other powers and duties imposed upon the Board by this article, the Board shall:

  1. Adopt, subject to approval by the Governor, general rules governing the granting of parole and eligibility requirements, which shall be published and posted for public review;
  2. Adopt, subject to approval by the Governor, rules providing for the granting of parole to those prisoners who are eligible for parole pursuant to § 53.1-165.1 on the basis of demonstrated maturity and rehabilitation and the lesser culpability of juvenile offenders;
    1. Release on parole for such time and upon such terms and conditions as the Board shall prescribe, persons convicted of felonies and confined under the laws of the Commonwealth in any correctional facility in Virginia when those persons become eligible and are found suitable for parole, according to those rules adopted pursuant to subdivisions 1 and 2;
    2. Establish the conditions of postrelease supervision authorized pursuant to § 18.2-10 and subsection A of § 19.2-295.2 ;
    3. Notify the Department of Corrections of its decision to grant discretionary parole or conditional release to an inmate. The Department of Corrections shall set the release date for such inmate no sooner than 30 business days from the date that the Department of Corrections receives such notification from the Chairman of the Board, except that the Department of Corrections may set an earlier release date in the case of an inmate granted conditional release pursuant to § 53.1-40.02 . In the case of an inmate granted parole who was convicted of a felony and sentenced to a term of 10 or more years, or an inmate granted conditional release, the Board shall notify the attorney for the Commonwealth in the jurisdiction where the inmate was sentenced (i) by electronic means at least 21 business days prior to such inmate’s release that such inmate has been granted discretionary parole or conditional release pursuant to § 53.1-40.01 or 53.1-40.02 or (ii) by telephone or other electronic means prior to such inmate’s release that such inmate has been granted conditional release pursuant to § 53.1-40.02 where death is imminent. Nothing in this section shall be construed to alter the obligations of the Board under § 53.1-155 for investigation prior to release on discretionary parole;
    4. Provide that in any case where a person who is released on parole or postrelease supervision has been committed to the Department of Behavioral Health and Developmental Services under the provisions of Chapter 9 (§ 37.2-900 et seq.) of Title 37.2 the conditions of his parole or postrelease supervision shall include the requirement that the person comply with all conditions given him by the Department of Behavioral Health and Developmental Services and that he follow all of the terms of his treatment plan;
  3. Revoke parole and any period of postrelease and order the reincarceration of any parolee or felon serving a period of postrelease supervision or impose a condition of participation in any component of the Statewide Community-Based Corrections System for State-Responsible Offenders (§ 53.1-67.2 et seq.) on any eligible parolee, when, in the judgment of the Board, he has violated the conditions of his parole or postrelease supervision or is otherwise unfit to be on parole or on postrelease supervision;
  4. Issue final discharges to persons released by the Board on parole when the Board is of the opinion that the discharge of the parolee will not be incompatible with the welfare of such person or of society;
  5. Make investigations and reports with respect to any commutation of sentence, pardon, reprieve or remission of fine, or penalty when requested by the Governor;
  6. Publish a statement regarding the action taken by the Board on the parole of prisoners within 30 days of such action. The statement shall list (i) the name of each prisoner considered for parole, (ii) the offense of which the prisoner was convicted, (iii) the jurisdiction in which such offense was committed, (iv) the length of the prisoner’s sentence and the date such sentence was imposed, (v) the amount of time the prisoner has served, (vi) whether the prisoner was granted or denied parole, and (vii) the basis for the grant or denial of parole. However, in the case of a prisoner granted parole, the information set forth in clauses (i) through (vii) regarding such prisoner shall be included in the statement published in the month immediately succeeding the month in which notification of the decision to grant parole was given to the attorney for the Commonwealth and any victims; and
  7. Ensure that each person eligible for parole receives a timely and thorough review of his suitability for release on parole, including a review of any relevant post-sentencing information. If parole is denied, the basis for the denial of parole shall be in writing and shall give specific reasons for such denial to such inmate.

History. Code 1950, §§ 53-238, 53-265; 1966, c. 638; 1970, c. 648; 1973, c. 253; 1974, cc. 44, 45; 1979, c. 625; 1982, c. 636; 1990, c. 538; 2000, cc. 338, 767; 2002, c. 569; 2003, c. 132; 2005, c. 657; 2006, cc. 863, 914; 2009, cc. 813, 840; 2013, c. 708; 2020, cc. 2, 529; 2021, Sp. Sess. I, cc. 287, 545; 2022, c. 141.

§ 53.1-137. Revocation hearings and subpoenas; penalty for disobeying subpoena or hindering hearing.

The Board is authorized to hold and conduct revocation hearings; to issue subpoenas requiring the attendance of witnesses and the production of records, memoranda, papers and other documents before the Board or any representative of the Board; and to administer oaths and take testimony thereunder. The Board may authorize any member or other authorized representative of the Board to hold and conduct hearings, issue subpoenas, and administer oaths and take testimony thereunder. If any person fails or refuses to obey any such subpoena issued by the Board or any member or other authorized representative thereof, or hinders the orderly conduct and decorum of any hearing held and conducted by the Board or any member or other authorized representative thereof, he shall be guilty of a Class 1 misdemeanor.

History. Code 1950, § 53-239; 1970, c. 648; 1982, c. 636; 1985, c. 174.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 53.1-138. Access to prisoners; reports of prison officials.

It shall be the duty of all prison officials to grant to the members of the Board, or its properly accredited representatives, access at all reasonable times to any prisoner whom the Board has power to parole; to provide for the Board and its representatives facilities for communicating with and observing such prisoner; and to furnish to the Board such reports as the Board or the Chairman shall request. Such reports may concern the conduct and character of any prisoner in their custody and other facts deemed by the Board pertinent in determining whether such prisoner shall be paroled.

History. Code 1950, § 53-240; 1970, c. 648; 1973, c. 253; 1982, c. 636.

§ 53.1-139. Powers and duties of Chairman.

In addition to other powers and duties prescribed by law, the Chairman of the Board shall:

  1. Preside at all meetings of the Board; cause the keeping of minutes of its proceedings and all other records required by law or by the Board incident to its functions, powers and duties;
  2. Exercise supervision for the Board through probation and parole officers over prisoners released on conditional pardon as the Governor may require;
  3. Sign for the Board its approval of annual reports, evaluations, requests, plans, budgets and other similar documents prepared for the Governor, other departments, and other entities; and
  4. Serve as spokesman for the Board unless the Board designates another.

History. Code 1950, §§ 53-241, 53-265; 1970, c. 648; 1973, c. 253; 1974, cc. 44, 45; 1982, c. 636; 1984, c. 734; 1988, c. 823; 1992, c. 144.

Law Review.

For article on the parole process in Virginia, see 16 U. Rich. L. Rev. 505 (1982).

§ 53.1-139.1. Repealed by Acts 1992, c. 144.

§ 53.1-140. Powers and duties of Director of Department.

The Director of the Department of Corrections shall:

  1. Direct and supervise the work of all probation and parole officers employed and authorized as officers of the court pursuant to the provisions of this article and the Virginia Personnel Act (§ 2.2-2900 et seq.);
  2. Carry or cause to be carried into effect all orders of the Board and all rules and regulations adopted by it pursuant to the provisions of this article;
  3. Prepare and submit to the circuit courts of the Commonwealth lists of persons suitable and qualified, in his opinion, for authorization as probation and parole officers pursuant to the provisions of this article; and
  4. Coordinate with the Parole Board the activities of the Department of Corrections that relate to parole.

History. Code 1950, § 53-241.1; 1974, cc. 44, 45; 1979, c. 700; 1981, c. 276; 1982, c. 636; 2003, c. 944.

The 2003 amendments.

The 2003 amendment by c. 944 substituted “employed and authorized as officers of the court pursuant to the provisions of this article and the Virginia Personnel Act (§ 2.2-2900 et seq.)” for “appointed pursuant to the provisions of this article” in subdivision 1; and rewrote subdivision 3, which read: “Prepare and submit to the several circuit courts of the Commonwealth authorized to appoint probation and parole officers pursuant to the provisions of this article lists of persons suitable and qualified, in his opinion, for appointment as such officers; and.”

Law Review.

For article on the parole process in Virginia, see 16 U. Rich. L. Rev. 505 (1982).

CASE NOTES

Authority to set probation conditions. —

Statutory scheme for probation insures that both the Department of Corrections and its probation officers, who are best positioned to determine what conditions and restrictions will effectively accomplish these goals, will have the flexibility they need to set appropriate conditions for the individual probationer. Clarke v. Commonwealth, 2017 Va. App. LEXIS 338 (Va. Ct. App. Dec. 27, 2017).

Department of Corrections has authority to develop and implement probation. —

Read together, §§ 53.1-145 , 53.1-10(3) , and 53.1-140 grant the Department of Corrections the authority to develop and implement regulations governing its supervision of probationers, in order to accomplish the well-established goals of probation: to reform the offender and restore to a useful place in society an offender who is a good social risk. Clarke v. Commonwealth, 2017 Va. App. LEXIS 338 (Va. Ct. App. Dec. 27, 2017).

§ 53.1-140.1. (Effective July 1, 2022) Department to provide services.

The Department shall ensure that educational, vocational, counseling, substance abuse, rehabilitative, and reentry services are available at all probation and parole offices.

History. 2020, Sp. Sess. I, cc. 50, 52.

Editor’s note.

2020, Sp. Sess. I, cc. 50 and 52, cl. 6 was codified as this section at the direction of the Virginia Code Commission.

Acts 2020 Sp. Sess. I, cc. 50 and 52, cl. 3 provides: “That the provisions of this act, other than the provisions of the second enactment of this act, shall become effective on July 1, 2022.”

Article 2. State Probation and Parole Services.

§ 53.1-141. Division into probation and parole districts.

The Director of the Department shall divide the Commonwealth into as many separate probation and parole districts as he deems necessary to carry out the purposes of this article. The Director may change the area embraced in any probation and parole district to conform to conditions and demands as they arise.

History. Code 1950, § 53-242; 1970, c. 648; 1974, cc. 44, 45; 1979, c. 700; 1982, c. 636; 1984, c. 514.

Cross references.

As to limitations on the release of documents related to investigation or supervision by state probation and parole services, see § 2.2-3706 .

§ 53.1-142. Assignments of officers to districts.

There shall be at least one probation and parole officer for each probation and parole district. The Director of the Department may assign officers authorized in one district to duties in another district. However, no such transfer shall be effected without the concurrence of the affected officer. Any officer so assigned shall have the same power and authority as an officer authorized by the judge or judges of the court or courts of such other district. The Director, in consultation with the court, shall designate all supervisory staff.

History. Code 1950, § 53-243; 1966, c. 638; 1973, c. 253; 1974, cc. 44, 45; 1979, c. 700; 1982, c. 636; 1984, c. 514; 2003, c. 944.

The 2003 amendments.

The 2003 amendment by c. 944 rewrote the section, which formerly read: “There shall be at least one probation and parole officer for each probation and parole district. The Director of the Department may temporarily assign officers appointed in one district to duties in another district, subject to the consent of the appointing judge or judges. Any officer so assigned shall have the same power and authority as an officer appointed by the judge or judges of the court or courts of such other district.”

§ 53.1-143. How officers authorized.

The Director shall employ officers to carry out the powers and duties prescribed in § 53.1-145 and elsewhere in this article. The Director shall submit the names of eligible officers to the judge or judges of the judicial circuit where the officer is initially assigned to be authorized to act as an officer of the court.

The judge or judges of the judicial circuit to which an officer is assigned shall authorize the officer to serve as an officer of the court to carry out the power and duties prescribed in § 53.1-145 and elsewhere in this article. When the area of a probation and parole district lies in two or more judicial circuits, the probation and parole officers shall be authorized by joint action of the judges of the several circuits. If there are more than two such judges, a majority vote shall control the authorization.

Whenever the authorization is to be made by two judges and they fail to agree within 60 days of the Director’s assignment of such officer, the Director shall authorize the officer to serve the judicial circuits of the Commonwealth.

The authorization of an officer by the judicial circuit to which the officer is initially assigned shall be valid in all judicial circuits in the Commonwealth regardless of subsequent assignments.

History. Code 1950, § 53-244; 1970, c. 648; 1973, c. 253; 1974, cc. 44, 45; 1979, c. 700; 1982, c. 636; 1984, c. 514; 2003, c. 944.

The 2003 amendments.

The 2003 amendment by c. 944 rewrote the section.

CASE NOTES

Termination of probation officer. —

Circuit court did not err in affirming a hearing officer’s decision that despite the employer’s failure to strictly comply with its own termination policy, that noncompliance was harmless error, as only the circuit court was authorized to rescind the employee’s appointment as a probation officer serving that court; further, the action of the court could not have been challenged to the employer, even if the employee had been provided an opportunity to respond to the charges before her termination, as the employer could neither authorize nor rescind authorization for the employee to serve as a court-appointed probation officer. Barker v. Va. Dep't of Corr., 2005 Va. App. LEXIS 327 (Va. Ct. App. Aug. 30, 2005).

§ 53.1-144. Term of officers.

Each probation and parole officer shall be authorized initially for a term of one year. Subsequent authorizations shall be for indefinite periods.

History. Code 1950, § 53-245; 1966, c. 638; 1974, cc. 44, 45; 1978, c. 595; 1979, c. 700; 1982, c. 636; 2003, c. 944.

The 2003 amendments.

The 2003 amendment by c. 944 rewrote the section, which formerly read: “Each probation and parole officer shall be appointed initially for a term of one year. Subsequent appointments shall be for indefinite periods. Any such officer may be suspended or removed at the pleasure of the judge or judges having the appointing power. An officer may be suspended for cause by the Director, with the subsequent consent of the appointing judge or judges, for a period not exceeding thirty days.”

§ 53.1-145. (Effective until July 1, 2022) Powers and duties of probation and parole officers.

In addition to other powers and duties prescribed by this article, each probation and parole officer shall:

  1. Investigate and report on any case pending in any court or before any judge in his jurisdiction referred to him by the court or judge;
  2. Supervise and assist all persons within his territory placed on probation, secure, as appropriate and when available resources permit, placement of such persons in a substance abuse treatment program which may include utilization of acupuncture and other treatment modalities, and furnish every such person with a written statement of the conditions of his probation and instruct him therein; if any such person has been committed to the Department of Behavioral Health and Developmental Services under the provisions of Chapter 9 (§ 37.2-900 et seq.) of Title 37.2, the conditions of probation shall include the requirement that the person comply with all conditions given him by the Department of Behavioral Health and Developmental Services, and that he follow all of the terms of his treatment plan;
  3. Supervise and assist all persons within his territory released on parole or postrelease supervision, secure, as appropriate and when available resources permit, placement of such persons in a substance abuse treatment program which may include utilization of acupuncture and other treatment modalities, and, in his discretion, assist any person within his territory who has completed his parole, postrelease supervision, or has been mandatorily released from any correctional facility in the Commonwealth and requests assistance in finding a place to live, finding employment, or in otherwise becoming adjusted to the community;
  4. Arrest and recommit to the place of confinement from which he was released, or in which he would have been confined but for the suspension of his sentence or of its imposition, for violation of the terms of probation, post-release supervision pursuant to § 19.2-295.2 or parole, any probationer, person subject to post-release supervision or parolee under his supervision, or as directed by the Chairman, Board member or the court, pending a hearing by the Board or the court, as the case may be;
  5. Keep such records, make such reports, and perform other duties as may be required of him by the Director and the court or judge by whom he was authorized;
  6. Order and conduct, in his discretion, drug and alcohol screening tests of any probationer, person subject to post-release supervision pursuant to § 19.2-295.2 or parolee under his supervision who the officer has reason to believe is engaged in the illegal use of controlled substances or marijuana, or the abuse of alcohol. The cost of the test may be charged to the person under supervision. Regulations governing the officer’s exercise of this authority shall be promulgated by the Director;
  7. Have the power to carry a concealed weapon in accordance with regulations promulgated by the Director and upon the certification of appropriate training and specific authorization by a judge of a circuit court;
  8. Provide services in accordance with any contract entered into between the Department of Corrections and the Department of Behavioral Health and Developmental Services pursuant to § 37.2-912 ;
  9. Pursuant to any contract entered into between the Department of Corrections and the Department of Behavioral Health and Developmental Services, probation and parole officers shall have the power to provide intensive supervision services to persons placed on conditional release, regardless of whether the person has any time remaining to serve on any criminal sentence, pursuant to Chapter 9 (§ 37.2-900 et seq.);
  10. Determine by reviewing the Local Inmate Data System upon intake and again prior to release whether a blood, saliva, or tissue sample has been taken for DNA analysis for each person placed on probation or parole required to submit a sample pursuant to Article 1.1 (§ 19.2-310.2 et seq.) of Chapter 18 of Title 19.2 and, if no sample has been taken, require a person placed on probation or parole to submit a sample for DNA analysis;
  11. For every offender accepted pursuant to the Interstate Compact for the Supervision of Adult Offenders (§ 53.1-176.1 et seq.) who has been convicted of an offense that, if committed in Virginia, would be considered a felony, take a sample or verify that a sample has been taken and accepted into the data bank for DNA analysis in the Commonwealth;
  12. Monitor the collection and payment of restitution to the victims of crime for offenders placed on supervised probation;
  13. Prior to the release from supervision of any offender on probation as of July 1, 2019, review the criminal history record of the offender at least 60 days prior to release from supervision, or immediately if the offender is scheduled to be released from supervision within less than 60 days, to determine whether all offenses for which the offender is being supervised appear on such record and, if any such offense that is required to be reported to the Central Criminal Records Exchange pursuant to § 19.2-390 does not appear, (i) take and provide fingerprints and a photograph of the offender to the Central Criminal Records Exchange to be classified and filed as part of the criminal history record information pursuant to subsection D of § 19.2-390 and (ii) provide written or electronic notification to the Central Criminal Records Exchange within the Department of State Police that such offense does not appear on the offender’s criminal history record; and
  14. Upon intake of any offender on or after July 1, 2019, (i) take and provide fingerprints and a photograph of the offender to the Central Criminal Records Exchange to be classified and filed as part of the criminal history record information pursuant to subsection D of § 19.2-390 , (ii) review the criminal history record of the offender to determine whether all offenses for which the offender is being supervised appear on such record, and (iii) if any such offense that is required to be reported to the Central Criminal Records Exchange pursuant to § 19.2-390 does not appear, provide written or electronic notification to the Central Criminal Records Exchange within the Department of State Police that such offense does not appear on the offender’s criminal history record.Nothing in this article shall require probation and parole officers to investigate or supervise cases before general district or juvenile and domestic relations district courts.

History. Code 1950, § 53-250; 1970, c. 648; 1973, c. 253; 1974, cc. 44, 45, 240; 1975, c. 630; 1976, c. 39; 1982, c. 636; 1992, cc. 188, 740; 1994, c. 935; 1994, 2nd Sp. Sess., cc. 1, 2; 1995, cc. 502, 574; 1997, c. 526; 2003, c. 944; 2006, cc. 698, 730, 863, 914; 2007, c. 528; 2009, cc. 813, 840; 2011, cc. 384, 410; 2014, cc. 674, 719; 2018, cc. 316, 671; 2019, cc. 782, 783; 2020, c. 759.

Editor’s note.

Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, “if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly.” The funding was not provided.

The 1997 amendment added the present second sentence of subdivision 6.

The 2003 amendments.

The 2003 amendment by c. 944, in subdivision 2, deleted “Except those persons placed in probation supervision programs established under §§ 9.1-174 and 9.1-176 ,” at the beginning, deleted “or post-release supervision pursuant to § 19.2-295.2 ” preceding “secure,” and deleted “or post-release supervision” preceding “and instruct”; in subdivision 3, inserted “or postrelease supervision” following “on parole,” and “postrelease supervision” following “his parole”; substituted “authorized” for “appointed” at the end of subdivision 5; deleted the next-to-last sentence in subdivision 6, which read: “Upon one instance of a failed drug test, such officer shall notify the local department of social services”; substituted “a circuit court” for “the circuit court to which the officer is assigned” at the end of subdivision 7; and inserted “general district or” in the last paragraph.

The 2006 amendments.

The 2006 amendments by cc. 698 and 730, effective April 5, 2006, are identical, and added subdivision 8 and made related changes.

The 2006 amendments by cc. 863 and 914 are nearly identical, and added the language beginning “if any such person has been committed” at the end of subdivision 2; added subdivision 9; and made related changes.

The section is set out in the form above at the direction of the Virginia Code Commission.

The 2007 amendments.

The 2007 amendment by c. 528 added subdivisions 10 and 11 and made related changes.

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical and substituted “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse” in subdivisons 2, 8 and 9.

The 2011 amendments.

The 2011 amendments by cc. 384 and 410, effective March 23, 2011, inserted “synthetic cannabinoids” and made a related change in subdivision 6.

The 2014 amendments.

The 2014 amendments by cc. 674 and 719 are identical, and deleted “or synthetic cannabinoids” following “marijuana” in subdivision 6, and made a stylistic change.