Excessive Sentencing Project - Virginia

Policies and rulings on lengthy imprisonment terms in Virginia.

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  • Virginia abolished parole in 1995.
  • Virginia has mandatory LWOP and JLWOP. See Va. Code Ann. § 18.2-10 (2012).
  • Juveniles may be transferred to criminal court at age 14.
State Constitution

Va. Const. Art. I, § 9 (2012): 

§ 9.  Prohibition of excessive bail and fines, cruel and unusual punishment, suspension of habeas corpus, bills of attainder, and ex post facto laws 

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of invasion or rebellion, the public safety may require; and that the General Assembly shall not pass any bill of attainder, or any ex post facto law.

Note: Article I, Section 9 is interpreted as the equivalent of the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System –
    • Virginia’s Sentencing Guidelines are advisory in nature. Nevertheless, a sentencing worksheet must be completed and deviations from the recommended guidelines sentences should be explained in writing. Departure is not grounds for appeal.  See www.vcsc.virginia.gov/.
  • Proportionality Review for Death Sentences – Va. Code Ann. § 17.1-313(C)(2)
    • Virginia courts are statutorily required to review capital cases for proportionality. See Va. Code Ann. § 17.1-313(C)(2). The goal of this review is not to ensure “complete symmetry,” but rather to identify an “aberrant death sentence.” Gray v. Commonwealth, 274 Va. 290, 303 (Va. 2007) (quoting Muhammad v. Commonwealth, 269 Va. at 451, 532 (2005).
  • Habitual Offender Statutes –  Va. Code Ann. § 19.2-297.1 (2012)
    • § 19.2-297.1. Sentence of person twice previously convicted of certain violent felonies
Case Law

General  

An issue may not be heard for the first time on appeal. Singson v. Commonwealth, 46 Va. App. 724, 748-749 (Va. Ct. App. 2005). In order to preserve an issue for appeal, a contemporaneous objection must be made in the trial court. The objection must be both timely and specific so that the trial judge may address the objection. Singson v. Commonwealth, 46 Va. App. 724, 748-749 (Va. Ct. App. 2005) (citing Thomas v. Commonwealth, 44 Va. App. 741, 750 (2005)). See also West v. Commonwealth, 43 Va. App. 327, 337 (2004).

State Constitution & Proportionality 

Traditionally, Virginia courts have deferred to the legislature regarding the length of a prison sentence. Dunaway v. Commonwealth, 52 Va. App. 281, 311 (Va. Ct. App. 2008) (citing citing Hart v. Commonwealth, 131 Va. 726, 741-42, 109 S.E. 582, 586-87 (Va. 1921)).

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The Eighth Amendment to the United States Constitution is modeled on and congruent to Article I, Section 9 of the Constitution of Virginia. Department of Prof'l & Occupational Regulation v. Abateco Servs., 33 Va. App. 473, 481 (Va. Ct. App. 2000); See also Dunaway v. Commonwealth, 52 Va. App. 281, 310-313 (Va. Ct. App. 2008).

Article I, Section 9 of the Constitution of Virginia, as well as its federal equivalent, stands for the principle that “the punishment should not be disproportionate to the crime. Department of Prof'l & Occupational Regulation v. Abateco Servs., 33 Va. App. 473, 481-482 (Va. Ct. App. 2000).

“No punishment authorized by statute, even though severe, is cruel and unusual unless it is one ‘prescribing a punishment in quantum so severe for a comparatively trivial offense that it would be so out of proportion to the crime as to shock the conscience . . . .’” DePriest v. Commonwealth, 33 Va. App. 754, 764 (Va. Ct. App. 2000) (quoting Hart v. Commonwealth, 131 Va. 726, 745 (Va. 1921)).

To determine the proportionality of a punishment under Article I, Section 9 of the Constitution of Virginia, Virginia courts have adopted an analysis similar to the Supreme Court’s “gross disproportionality” standard. Department of Prof'l & Occupational Regulation v. Abateco Servs., 33 Va. App. 473, 482-483 (Va. Ct. App. 2000); Dunaway v. Commonwealth, 52 Va. App. 281, 311-12 (Va. Ct. App. 2008).

Mandatory sentences are not per se cruel and unusual punishment under the Constitution of Virginia. See Dunaway v. Commonwealth, 52 Va. App. 281, 311-313 (Va. Ct. App. 2008).

Execution by electrocution does not violate Article I, Section 9 of the Constitution of Virginia. Orbe v. Johnson, 267 Va. 560, 562 (Va. 2004).

Leading Court Discussions of Graham and Miller

Angel v. Com., 281 Va. 248, 704 S.E.2d 386 (January 13, 2011) (statute that provides conditional release of prisoners who have reached a certain age and served a certain length of imprisonment affords “meaningful opportunity” and does not violates Graham