December 2021
Virginia provides compassionate release to eligible incarcerated individuals who are
terminally ill through Conditional Release Based on Terminal Illness
1
and Executive
Medical Clemency,
2
and to eligible individuals who are age 60 or older through
Geriatric Conditional Release.
3
CONDITIONAL RELEASE BASED ON TERMINAL
ILLNESS
I. ELIGIBILITY
Medical Condition – Incarcerated individuals who are terminally ill may be eligible for
Conditional Release.
“Terminally ill” is defined as having a chronic or progressive medical condition
caused by injury, disease, or illness where the individual is expected to die
within 12 months.
4
Exclusions – There is a long list of terminally ill individuals who will not be considered
for Conditional Release, including those serving sentences for first or second degree
murder, any kidnapping or abduction felony, arson, sexual assault, treason, and
certain robbery and carjacking offenses.
5
II. APPLICATION/REFERRAL
An incarcerated individual who is terminally ill may petition the Virginia Parole Board
for Conditional Release by submitting a Petition for Conditional Release Based on
Terminal Illness.
6
The petition form states that an individual’s “institutional counselor” may
assist in filling out the form and gathering any necessary information.
7
III. DOCUMENTATION AND ASSESSMENT
The Parole Board requires an incarcerated individual to submit the following
information with the Petition for Conditional Release Based on Terminal Illness:
Identification of health issues, including medical reports;
Residential plans;
Family/community support;
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Names and contact phone numbers of “support individuals or groups”; and
Any other pertinent information.
8
IV. DECISION-MAKING PROCESS
Decision-Maker – The Virginia Parole Board makes the final decision whether to
release terminally ill individuals on Conditional Release.
9
Decision – The Parole Board reviews and considers the petitions that eligible
individuals submit and provides written notification of its decisions.
10
Other than the Petition for Conditional Release Based on Terminal Illness form, the
Parole Board has not promulgated any rules implementing Conditional Release Based
on Terminal Illness, and there is no other information available on the Board’s
decision-making process in these cases.
11
V. POST-DECISION
Although the statute does not address whether an individual may reapply after a
denial, the Petition for Conditional Release Based on Terminal Illness includes a box
the Parole Board can check to indicate it will not consider a request if the individual
previously submitted a petition less than one year ago.
12
There is no other information
available about whether the Board will reconsider a petition if an individual’s health
has changed or worsened in the interim.
VI. REPORTING/STATISTICS
The Conditional Release Based on Terminal Illness statute became effective on March
1, 2021, and, as of this memo’s publication, the Parole Board has not issued
information indicating that any individuals have been released under the new law.
EXECUTIVE MEDICAL CLEMENCY
The Governor may grant Executive Medical Clemency, also referred to as a Medical
Pardon, to incarcerated individuals who are terminally ill.
13
I. ELIGIBILITY
Medical Condition – An incarcerated individual is eligible for Medical Clemency
consideration if the person has a terminal illness with a life expectancy of three
months or less.
14
December 2021 3
Note that this definition of terminal illness is different than the one used in the
Conditional Release Based on Terminal Illness law, where terminal illness is
defined as being expected to die within 12 months.
The incarcerated individual’s treating physician and a second licensed physician, one
of whom must be a Department of Corrections (Department) physician, must make
the diagnosis.
15
Exclusions – There is no information on any incarcerated individuals being excluded
from Medical Clemency consideration.
II. APPLICATION/REFERRAL
Request/Petition – Incarcerated individuals, or relatives or friends on their behalf,
can submit requests for Medical Clemency to the Office of the Secretary of the
Commonwealth.
16
For information on how to submit a Medical Clemency Petition (also referred to
as a Medical Pardon Petition), individuals must email the Office of the
Secretary of the Commonwealth at
III. DOCUMENTATION AND ASSESSMENT
The only additional information the Department provides on the documentation and
assessment process is that the Secretary of the Commonwealth and/or the Parole
Board may ask Department “organizational units” for additional information on the
incarcerated individual’s medical treatment, mental and physical health needs,
programming, work history, disciplinary record, interactions with staff and other
incarcerated people, cognitive functioning, proposed home plan, and support
system.
17
Pre-release Planning – Although the Department has fairly comprehensive
guidance on pre-release planning,
18
it does not appear applicable to
incarcerated individuals who are terminally ill. For example, Re-entry
Counselors are directed to work on “home plans,” and for people with ongoing
medical issues, the Re-entry Counselors must complete a “Problematic Release
Plan,” which require extra coordination to facilitate release.
19
This planning
process, which includes arranging for medical equipment and needed supplies
and beginning the public benefits application process, does not reference
incarcerated people who are terminally ill and the stated time frames (up to 12
months to complete some of the paperwork) are unrealistic for individuals who
are terminally ill.
December 2021 4
IV. DECISION-MAKING PROCESS
Decision-Maker – Only the Governor of Virginia has the power to grant Executive
Medical Clemency on the basis of a terminal illness.
20
Decision – At the Governor’s request, the Virginia Parole Board is responsible for
investigating Medical Clemency petitions and reporting its recommendations.
21
Conditions – If the Governor grants the request, the Department’s Community
Release Unit will create the release authorization, detailing the appropriate reporting
instructions for the person’s “release status.”
22
As a condition of Medical Clemency, an individual who is terminally ill must
agree in writing to have a physician provide updated medical information to
the Department whenever requested.
23
V. POST-DECISION
Supervision – The Governor may direct that an individual granted Medical Clemency
be placed under supervision. In that situation, the individual is supervised in the same
manner and under the same conditions as individuals released on parole, in addition
to any conditions the Governor sets related to the medical condition.
24
Medical Follow-Up
The Department’s Chief Physician (or designee) will communicate with the
individual’s physician as needed to gather updated information on the medical
condition, level of alertness, whether the individual is ambulatory and eating,
and prognosis.
25
A Department physician, if necessary, will be allowed to visit and examine any
individual released on Medical Clemency.
26
Revocation/Termination – As stated above, a condition of being released under the
Medical Clemency rules is that an individual must agree in writing to have a physician
provide medical updates to the Department whenever requested. If a request for
updated medical information is not honored, the Medical Clemency release can be
immediately terminated.
27
VI. REPORTING/STATISTICS
Each year the Governor submits a report to the Virginia General Assembly providing
information on the number of individuals granted pardons, commutations, and other
forms of Executive Clemency. According to the most recent reports, in 2019, Governor
Ralph Northam granted three terminally ill individuals Executive Clemency in the form
December 2021 5
of a Medical Pardon,
28
and in 2020, he granted one terminally ill individual Executive
Clemency in the form of a Medical Pardon.
29
GERIATRIC CONDITIONAL RELEASE
I. ELIGIBILITY
Age – Older incarcerated individuals may petition for Geriatric Conditional Release if
they are (1) age 60 or older, having served at least 10 years of their sentence, or (2)
age 65 or older, having served at least five years of their sentence.
30
Exclusions – Individuals convicted of Class 1 felonies are not eligible for Geriatric
Conditional Release.
31
II. APPLICATION/REFERRAL
Automatic Consideration – The Virginia Parole Board automatically reviews
individuals incarcerated for felonies committed after January 1, 1995, within a year
after they become eligible for Geriatric Conditional Release and annually thereafter.
32
Petition – Any incarcerated individual eligible for discretionary parole may submit a
Petition for Geriatric Conditional Release, available on the Parole Board’s website, to
be considered for release.
33
Petitions can be submitted 90 days or less before the date the incarcerated
individual meets the minimum age and time served requirements.
34
III. DOCUMENTATION AND ASSESSMENT
There is no formal documentation or assessment process prior to a Petition for
Geriatric Conditional Release being submitted directly to the Board.
IV. DECISION-MAKING PROCESS
Decision-Maker – The Virginia Parole Board makes all decisions regarding Geriatric
Conditional Release.
Decision Process – The Parole Board may deny petitions for Geriatric Conditional
Release based on a review of the incarcerated individual’s record.
35
Petitions not
denied on review are considered through the following procedures:
Initial Review – Parole Board members review the incarcerated person’s
petition, the individual’s “central file,” and any other relevant information.
36
December 2021 6
o If the Board denies Geriatric Conditional Release at this step by a
majority vote, the process ends.
37
o If the Board does not deny the request in its initial review, the case
automatically advances to the next level, an “assessment review.”
38
Assessment Review – A member of the Parole Board, or a designated staff
person, conducts personal interviews with those petitioning for release and
completes written assessments of their “suitability” for Geriatric Conditional
Release. A recommendation to grant (or not grant) release is then made,
detailing the supporting reasons.
39
o Victim Notification – The Parole Board will notify the Department of
Correction’s (Department) Victim Services office as required under
Virginia Law, with the victim receiving written notification that an
incarcerated person has petitioned for Geriatric Conditional Release.
40
The victim will be given 60 days to provide any comments and
concerns,
41
and consideration of any Geriatric Conditional Release is put
on hold until that time period has ended.
42
Final Vote and Decision – All factors the Parole Board uses in making parole
decisions also apply in Geriatric Conditional Release, including victim input.
43
The case is then directed to the other Board members for review and decision.
o The decision requires the concurrence of at least three Parole Board
members. In the cases of individuals serving life sentences, Geriatric
Conditional Release will not be granted unless four Board members
agree.
44
o Once a final decision has been made, the crime victim will be notified of
the Parole Board’s action.
45
Conditions and Pre-release Planning
Pre-release Planning
– Transition, health care, and mental health staff are
directed to complete applications for federal and state benefits that are
available to older individuals after they are released. Those include veterans,
Medicaid, and Supplemental Security Income (SSI) benefits.
46
Note that the
Department has a “Memorandum of Understanding” with the Social Security
Administration covering pre-release SSI application procedures.
47
Conditions – The Parole Board sets the Geriatric Conditional Release terms and
conditions, which are similar to those for general parole.
48
However, the Board
can impose additional special conditions it feels are appropriate.
49
December 2021 7
V. POST-DECISION
Denials and Appeal Rights – An individual may resubmit a Petition for Geriatric
Conditional Release on an annual basis for the Parole Board’s review.
50
Effect of Conditional Release Request on Other Release Eligibility – An incarcerated
individual may receive only one “consideration for release” (either discretionary
parole or conditional release) in any 12-month period.
51
Supervision – The Parole Board establishes the period of supervision for the formerly
incarcerated person, with supervision provided by the Department’s Division of
Community Corrections.
52
Revocation/Termination – If the individual violates one or more terms of the
Geriatric Conditional Release, the Board may order an arrest and reincarceration.
53
VI. REPORTING/STATISTICS
The Parole Board publishes the number of individuals granted Geriatric Conditional
Release as part of its monthly parole reports.
54
In 2019, the Parole Board considered 664 people for Geriatric Conditional Release,
granting it to just 24 individuals – less than 4%. The age range of those granted
release was 60 to 77 years old.
Of the 24 people granted Geriatric Conditional Release, 23 were men and one
was a woman; 18 individuals were Black and six were white.
Of the 640 people denied Geriatric Conditional Release, 621 were men and 19
were women; 326 were white, 307 were Black, five were Asian
American/Pacific Islander, and two were American Indian/Alaska Native.
In 2020, the Parole Board considered 940 people for Geriatric Conditional Release but
only granted it to 79 individuals, ages 60 to 83. The percentage granted – 8.4% – is
still relatively low but twice as high as the previous year.
Of the 79 people granted Geriatric Conditional Release in 2020, 73 were men
and six were women; 51 individuals were Black, 27 were white, and one was
Asian American/Pacific Islander. Of the 79, four were also considered “dual
eligibles,” meaning they were eligible for both Geriatric Conditional Release
and general parole.
Of the 861 people denied Geriatric Conditional Release in 2020, 841 were men
and 20 were women; 451 individuals were white, 406 were Black, three were
Asian American/Pacific Islander, and one was American Indian/Alaska Native.
December 2021 8
VIRGINIA COMPASSIONATE RELEASE
PRIMARY LEGAL SOURCES
CONDITIONAL RELEASE BASED ON TERMINAL ILLNESS
Statute
Virginia Code, § 53.1-40.02 (2021), available through the Virginia General Assembly,
https://law.lis.virginia.gov/vacode/title53.1/chapter2/section53.1-40.02/.
Agency Policy/Publications
Virginia Parole Board, Petition for Conditional Release Based on Terminal Illness (2021),
https://vpb.virginia.gov/files/1193/vpb-pb29-petition-for-terminal-illness-release.pdf.
Virginia Department of Corrections, Operating Procedure 820.02-Inmate Reentry Planning (May 1,
2021), §§ XI (A) (2) and (C),
https://vadoc.virginia.gov/files/operating-procedures/800/vadoc-op-820-
2.pdf.
EXECUTIVE MEDICAL CLEMENCY
Statute
Virginia Code, §§ 53.1-229 and 53.1-231, available through the Virginia General Assembly,
https://law.lis.virginia.gov/vacode/title53.1/chapter12/.
Agency Policy/Publications
Secretary of the Commonwealth Kelly Thomasson, Pardons webpage,
https://www.commonwealth.virginia.gov/judicial-system/pardons/conditional-pardons/.
Virginia Department of Corrections, Operating Procedure 820.2-Inmate Reentry Planning (May 1,
2021), §§ XI (B) and (C),
https://vadoc.virginia.gov/files/operating-procedures/800/vadoc-op-820-
2.pdf.
Virginia Department of Corrections, Operating Procedure 050.3 (Nov. 1, 2020), § II (E) (6),
https://www.vadoc.virginia.gov/files/operating-procedures/050/vadoc-op-050-3.pdf.
(continued on next page)
December 2021 9
NOTES
* Id. means see prior note.
1
Va. Code Ann. § 53.1-40.02; Virginia Department of Corrections Operating Procedure (DOC-OP) 820.2,
§ XI (A) (2). See also Virginia Parole Board, Petition for Conditional Release Based on Terminal Illness.
Note that the program is referred to as both “Conditional Release of Terminally Ill Prisoners” and
“Conditional Release Based on Terminal Illness.”
2
Va. Code Ann. §§ 53.1-229 and 53.1-231; DOC-OP 820.2, § XI (B) and DOC-OP 050.03, § II (E) (6). See
also Secretary of the Commonwealth Kelly Thomasson, Pardons webpage.
3
Va. Code Ann. § 53.1-40.01; Virginia Parole Board Policy Manual, § II (B); Virginia Parole Board
Administrative Procedure (Parole Board Procedure) 1.226-Conditional Release of Geriatric Inmates;
DOC-OP 820.2, § XI (A) (1).
4
Va. Code Ann. § 53.1-40.02 (A); DOC-OP 820.2, § XI (A) (2) (a).
5
Va. Code Ann. §§ 53.1-40.02 (B) and (C); DOC-OP 820.2, § XI (A) (2) (c).
VIRGINIA COMPASSIONATE RELEASE
PRIMARY LEGAL SOURCES
(continued from previous page)
GERIATRIC CONDITIONAL RELEASE
Statute
Virginia Code, § 53.1-40.01, available through the Virginia General Assembly,
https://law.lis.virginia.gov/vacode/title53.1/chapter2/section53.1-40.01/.
Agency Policy/Publications
Virginia Parole Board, Policy Manual (2006), § II.B,
https://vpb.virginia.gov/files/1107/vpb-policy-
manual.pdf.
Virginia Parole Board, Administrative Procedures Manual, Administrative Procedure 1.226-Conditional
Release of Geriatric Inmates (2001),
https://vpb.virginia.gov/files/1108/vpb-procedure-manual.pdf.
Virginia Parole Board, Petition for Geriatric Conditional Release (March 1, 2021),
https://vpb.virginia.gov/files/1093/vpb-pb27-petition-for-geriatric-release.pdf.
Virginia Department of Corrections, Operating Procedure 820.2-Inmate Reentry Planning (May 1,
2021), §§ XI (A) (1) and (C),
https://vadoc.virginia.gov/files/operating-procedures/800/vadoc-op-820-
2.pdf.
December 2021 10
6
DOC-OP 820.2, § XI (A) (2) (b); Virginia Parole Board, Petition for Conditional Release Based on
Terminal Illness (Terminal Illness Petition).
7
Terminal Illness Petition, 2.
8
Id. at 1.
9
Va. Code Ann. § 53.1-40.02 (B).
10
Terminal Illness Petition, 2.
11
The statute specifically states that the Parole Board must promulgate regulations to implement the
new Conditional Release Based on Terminal Illness law. Va. Code Ann. § 53.1-40.02 (D). Note that the
Virginia Parole Board’s Policy Manual and Administrative Procedures Manual have not been updated
since 2006.
12
Terminal Illness Petition, 2.
13
Va. Code Ann. § 53.1-229; DOC-OP 820.2, § XI (B). See also Secretary of the Commonwealth Kelly
Thomasson, Pardons webpage. Note that although the Department uses the term “Medical Clemency,”
the Governor’s website refers to it as “Medical Pardon.”
14
DOC-OP 820.2, § XI (B) (2).
15
Id.
16
Id. at (B) (3). See also Secretary of the Commonwealth Kelly Thomasson, Pardons webpage.
17
Id. at (C).
18
Id. at §§ I through XII.
19
Id. at § VI (D) (2)
20
Va. Code Ann. § 53.1-229; DOC-OP 820.2, § XI (B) (1)
21
Va. Code Ann. § 53.1-231; Virginia Parole Board, Policy Manual § VII (B).
22
DOC-OP 820.2, § XII (A) (1).
23
DOC-OP 820.2, § XI (B) (4); DOC-OP 050.3, § II (E) (6).
24
Virginia Parole Board, Policy Manual § VII (C), referencing Va. Code Ann. § 53.1-136 (5).
25
DOC-OP 050.3, § II (E) (6) (b).
26
Id. at (6) (d).
27
DOC-OP 820.2, § XI (B) (4), referencing DOC-OP 050.3.
28
Office of the Governor, List of Pardons, Commutations, Reprieves and Other Forms of Clemency, to
the General Assembly of Virginia, Senate Document No. 2, (2020),
https://rga.lis.virginia.gov/Published/2020/SD2/PDF.
December 2021 11
29
Office of the Governor, List of Pardons, Commutations, Reprieves and Other Forms of Clemency, to
the General Assembly of Virginia, Senate Document No. 2, (2021),
https://rga.lis.virginia.gov/Published/2021/SD2/PDF.
30
Va. Code Ann. § 53.1-40.01; Parole Board Procedure 1.226; DOC-OP 820.2, §§ XI (A) (1) (a) and (A) (1)
(b).
31
Va. Code Ann. § 53.1-40.01; Parole Board Procedure 1.226, Policy; DOC-OP 820.2, § XI (A) (1) (b).
Class 1 felonies are the most serious crimes, including those punishable by death or life imprisonment.
See Va. Code Ann. § 18.2-9.
32
DOC-OP 820.2, § XI (A) (1) (c) (i). The Parole Board procedures do not reference automatic
consideration for Geriatric Conditional Release. Note that although the Department procedures say
that the Parole Board will review an individual eligible for Geriatric Conditional Release “annually,”
they also state that after the initial review the Parole Board can defer the “next review” for up to
three years. Id.
33
Id. at (A) (1) (c) (ii).
34
Id. at (A) (1) (c) (iii).
35
Parole Board Procedure 1.226, Policy.
36
Id. at Application, Initial Review.
37
Id.
38
Id.
39
Id. at Application, Assessment Review.
40
Id. at Application, Initial Review. See also Va. Code Ann. § 53.1-155 and Parole Board Procedure
1.225.
41
Parole Board Procedure 1.226, Application, Assessment Review. Comments can be provided in writing
or by phone.
42
Id.
43
Id.
44
Id.
45
Id.
46
DOC-OP 820.2, § X (C). Supplemental Security Income (SSI) provides income benefits for low-income
individuals who are disabled and/or age 65 or older. Note that SSI applications for age-based claims
may not be submitted more than 30 days prior to release. Id. at § X (B) (1) (b).
47
DOC-OP 820.2, § X (B) (1).
48
Parole Board Procedure 1.226, Application, Conditions of Release. See Virginia Parole Board Policy
Manual, § IV (A) for general conditions of parole.
December 2021 12
49
Parole Board Procedure 1.226, Application, Conditions of Release.
50
DOC-OP 820.2, § XI (A) (1) (c) (iv).
51
Parole Board Procedure 1.226, Application.
52
Id. at Application, Conditions of Release. Note that the Division of Community Corrections is still
referred to as the “Division of Probation and Parole” in some Department documents.
53
Id. Note, however, that an individual whose Geriatric Conditional Release is revoked may file a new
petition and be considered again “at the discretion of the Board.” Id. at Application, Review Following
Revocation of Conditional Release.
54
Virginia Parole Board, Parole Decisions,
https://vpb.virginia.gov/parole-decisions/.
