Speaker: Jason Miyares
Statement: “The Parole Board operates with Mark Herring’s advice and consent.”
Date: Sept. 2, 2021
Setting: Tweet
Jason Miyares, the Republican nominee for attorney general, is blaming Democratic incumbent Attorney General Mark Herring for the 2020 parole of seven people who had been convicted for different murders.
The most notable parolee was Vincent Martin, who was sentenced to life in prison for murdering Officer Michael Connors in 1979, during a Richmond traffic stop. The Office of the State Inspector General issued reports in the summer of 2020 finding the Virginia Parole Board skipped procedures in freeing the 64-year-old Martin and the others.
Republicans have made the parolees central in their efforts to paint Democrats as soft on crime. Glenn Youngkin, the GOP gubernatorial nominee, has stressed in TV ads that the five members of the Parole Board were appointed by Democratic governors including Terry McAuliffe, his opponent this fall.
Miyares tweeted on Sept. 2 that Herring is complicit in the Parole Board’s actions.
“The Parole Board operates with Mark Herring’s advice and consent,” Miyares wrote. “Mark Herring and Terry McAuliffe oversaw this Parole Board and as a result, we now have some of the most violent criminals back on our streets.”
McAuliffe, who was governor from 2014 to 2018, was not in office when the inmates were released, although he appointed four of the Parole Board members who made the decisions.
But what about the attorney general? We fact checked Miyares claim that the board runs with Herring’s advice and consent and found it far-fetched.
Legal arguments
“Advice and consent” is a term describing shared power between two different branches of government for certain decisions. It usually applies to judicial appointments made by the executive branch that must be approved by legislators; for example, the president nominates Supreme Court candidates but the U.S. Senate must approve them.
Virginia’s Constitution does not mention advice and consent among the responsibilities of the attorney general. It simply says, “He shall perform such duties and receive such compensation as may be prescribed by law…”
The state law setting out the powers and duties of the Parole Board does not mention the attorney general.
Why does Miyares say the agency operates with Herring’s advice and consent? His campaign points to a Virginia law that establishes the attorney general as the lawyer for the state and its agencies in all civil matters. In listing those agencies, the law mentions the Parole Board.
But the law Miyares cites does not refer to advice and consent which, again, means a shared power in making decisions. It sets out the attorney general’s responsibilities to give advice if agencies seek it and to represent them in legal issues that arise.
The attorney general’s website describes the office’s responsibilities this way: “Provide legal advice and representation to the Governor and executive agencies, state boards and commissions, and institutions of higher education. The advice commonly includes help with personnel issues, contracts, purchasing, regulatory and real estate matters and the review of proposed legislation. The Office also represents those agencies in court.”
Miyares’ other arguments
The inmates were released on several days in April 2020 as Adrianne Bennett was ending her tenure as Parole Board chairperson to become a judge in Virginia Beach. Miyares says Herring was likely looped into the decision making because a lawyer from the attorney general office attends Parole Board meetings in person or virtually.
Herring says the board did not seek advice from his office before the April parole decisions and Miyares offers no contrary evidence.
Most of the information Miyares’ campaign sent us took issue with Herrings’ actions after the releases began. The campaign accurately notes that Herring did not speak out against the releases.
Investigations by The Office of the State Inspector General in 2020 found that the Parole Board, spurred by Bennett, violated procedures for notifying the families of victims and prosecutors before paroling the inmates.
Top officials in Gov. Ralph Northam’s administration said the investigation was biased and the Democratic majority in the General Assembly appropriated $250,000 for a probe into the inspector general’s report.
At this point, Miares and other Republicans say Herring had conflicts of interest; the attorney general hired the law firm that conducted the probe, and his office was simultaneously representing the Parole Board and the inspector general. Herring said different, independent divisions in his office were representing the two state clients.
Our ruling
Miyares says, “The Parole Board operates with Mark Herring’s advice and consent.” But he falls short in his effort to tie the attorney general to the board’s decision to parole six men and one woman convicted for different murders.
“Advice and consent” means shared power for decisions. In Virginia, the attorney general represents the parole board but has no authority over its decisions. Herring says his office was not involved in the parole decisions, and Miyares offers no evidence to the contrary. He mostly defends his statement by questioning Herring’s actions - and lack of actions - after parole was granted.
We rate Miyares’ statement False.
Sources
Office of the State Inspector General, Administrative investigation of the Virginia Parole Board, July 28, 2020.
Glenn Youngkin, TV ad, Sept. 2, 2021.
Jason Miyares, Tweet, Sept. 2, 2021.
Duke Law Journal, “‘ Advice and Consent’ in the Appointments Clause: From Another Historical Perspective” May 2015.
Constitution of Virginia, Article 5, Section 15, accessed Sept. 7, 2021.
Code of Virginia, § 53.1-136. “ Powers and duties of Board; notice of release of certain inmates,” accessed Sept. 7, 2021.
Code of Virginia, § 2.2-507. “Legal service in civil matters,” accessed Sept. 7, 2021.
Emails from Miyares campaign, Sept. 7 and 9, 2021
Emails from Mark Herring campaign, Sept. 2-3, 2021
Blue Book of Virginia, 2013-14, 2017-18, 2019-20
Richmond Times-Dispatch, “ Attorney General Herring and GOP challenger Jason Miyares air differences in virtual debate,” June 15, 2021
Virginia Mercury, “‘ The laws did not matter’: Leaked reports show pattern of Parole Board violations,” Feb. 26, 2021
Virginia Mercury, “ The Parole Board scandal raises big questions — about the state’s watchdog agency,” April 22, 2021
Attorney General Mark Herring, “ Responsibilities”, accessed Sep. 6, 20.
Associated Press, “ Watchdog redacts more records related to parole board probe,” Oct. 7, 2020
