The Fourth Circuit said there could be no recourse in federal court for two inmates who spent an extra year in prison because of Virginia Attorney General Jason Miyares' incorrect interpretation of a state law that granted the men enough credits for good behavior to be released in 2022.

In a unanimous opinion issued Wednesday, a three-judge panel held that defendants Miyares and Virginia's Department of Corrections director, Harold Clarke, could not be held responsible for keeping Hamilton Hall Swart III and Richard Earl DaSilva incarcerated for one year beyond their proper release date because both leaders were doing their jobs to the best of their abilities. Although Miyares misinterpreted a law that gave the inmates an enhanced ability to earn days off their prison terms, his advisory opinion on the 2022 law was offered to Clarke in earnest, the panel said.

Under the U.S. Constitution, the inmates would have had to show that Miyares or Clarke acted with "deliberate indifference" to make their case, U.S. Circuit Judge J. Harvie Wilkinson III wrote for the panel.

"That is no easy task. The deliberate-indifference standard requires a state of mind equivalent to criminal law recklessness. Mere negligence, or even civil law recklessness, will not do," he added.

The panel said that although Miyares had served in the Virginia General Assembly and strongly opposed House Bill 5148, which granted inmates extra time off sentences for good behavior, it was unfair to assume that he was biased when he sent an advisory opinion to Clarke on the matter. In that opinion, Miyares interpreted the 2022 retroactive state law as preventing inmates convicted of attempted murder from earning extra credit for good behavior, according to the panel.

The court said this was a fine, but ultimately incorrect, interpretation.

"We will not presume bad faith when former legislators interpret a law as judges or, as here, officials within the executive branch," Judge Wilkinson wrote.

"To hold that earlier legislative service opens wide the door to federal damages suits would force an endless spate of recusals given the multitude of matters that come before a legislative body. It also ignores how a different branch of government brings with it a distinctive set of obligations, values and perspectives that shape how an official approaches the issues that come before him," he added.

However, Jeffrey Edward Fogel, who represents the inmates, both convicted of attempted murder, said bias was definitely at play. Attorney General Mark Herring, who preceded Miyares, had handed a contradictory advisory opinion to Clarke, stating that good-behavior credits were available to inmates convicted of attempted murder, according to the panel.

Clarke allegedly reached out to Miyares for a new advisory opinion on the matter when he took office, according to the court, but Fogel said he found no record of that interaction.

"I simply asked for the letter that asked for this [advisory opinion] and they didn't have it," Fogel said, explaining that he had sent a Freedom of Information Act request.

Under Virginia law, in order for the attorney general to issue an advisory opinion, a request had to be made by Clarke or another elected official.

"This attorney general did not follow the law, and he is just out there sending out advisory opinions, and they are not even legal," Fogel said.

Representatives for Miyares' office did not immediately respond to requests for comments on this case Thursday or provide the letter from Clarke upon request.

Due to a statute of limitations, Fogel said he is now unable to seek any remedies for his clients, short of having the state's legislature pass a private bill to compensate them, which he is looking into.

According to Virginia law, inmates who are wrongfully convicted and spend time in prison are eligible for compensation of $55,000 for each year they are wrongly held.

"They should have the same kind of remedy in this setting as well," said Fogel.

"Overall the real concern here is that something wrong happened to these two individuals, and the court's analysis is ... that there is no remedy: 'tough luck,'" Fogel said.

Miyares' advisory opinion said crimes that prepare for or seek to commit another crime — like attempted murder and attempted robbery — did not qualify for enhanced good-behavior credits, leading to hundreds of people being kept in prison for an extra year, Fogel estimated.

Without being able to hold anyone responsible in a case like this, clients like his won't get any compensation, he said, "and it doesn't bode well for the future if the attorney general can make things happen and face no accountability." 

Swart, who Fogel estimates is nearing 70, served 14 years in prison, while DaSilva, who is in his 40s, served 17, the attorney said.

Both men were released only in 2023, after the Virginia Supreme Court unanimously held that those convicted of attempted murder, considered an inchoate crime, were eligible for extra good-behavior credit under the 2022 law, the panel said.

The Fourth Circuit said that while Herring and Miyares "did not agree on how to treat inchoate acts," the "disagreement simply indicates the existence of a legal dispute. That is standard fare in our profession," not some greater miscarriage of justice, as the inmates suggested.

Fogel found this notion intolerable. "They don't see how spending an extra year in prison is a big deal," he said.

U.S. Circuit Judges J. Harvie Wilkinson III, Paul V. Neimeyer and Robert Bruce King sat on the panel for the Fourth Circuit.

Swart and DaSilva are represented by Jeffrey Edward Fogel.

Jason Miyares and Harold Clarke are represented by Jason Miyares, Margaret A. O'Shea, Erika L. Maley, Michael Dingman and Rick W. Eberstadt of the Virginia Attorney General's Office.

The case is Swart et al. v. Miyares et al., case number 24-1117, in the U.S. Court of Appeals for the Fourth Circuit.

--Editing by Karin Roberts.