Special Report: Fighting From the Inside

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VIRGINIA BEACH, Va. (WAVY) – For months, an inmate sat in the Virginia Beach jail, knowing he shouldn’t be there.

It added up to 77 days beyond his sentence and a lawsuit that could cost the city and the state. After it plays out in the court, the ACLU of Virginia’s legal director also hopes it will lead to changes within the corrections system.

John Freeman’s trouble with the law began in 2005, with a relatively minor crime: His license was already suspended, so he signed a different name when he got pulled over for speeding.

That conviction spiraled into 12 years of legal problems, typically because Freeman violated his probation.

Freeman takes responsibility for that, and he knows landing in jail over and over ultimately falls on him. But he’s still a person with rights, and he and the ACLU argue those rights were violated when he was held more than two months beyond his court-ordered release date.

“It could happen to anybody,” Freeman said. “It could happen to John Q. Citizen, who gets pulled over for running a light and doesn’t know his license is suspended and ends up here. […] Once you do you pay your debt, you should be released.”

Five years after the 2005 forgery conviction, Freeman got in trouble again. He was found guilty in Norfolk of felony drug possession, which was in violation of his probation.

Later that year, he was charged with a traffic offense, then failure to appear when he didn’t show up in court.

In 2011, he was in Massachusetts, where most of his family lives, when he got pulled over for a traffic offense. The officer discovered the Virginia warrant for his arrest, and took him into custody.

Freeman served about a year and a half in Massachusetts.

As he drove back to Virginia, he got pulled over in Northampton County, again for a traffic violation. He was taken into custody on the still-outstanding warrants, and eventually convicted of the charges that stemmed from his probation violations.

The Virginia Department of Corrections calculated that Freeman should serve 957 days, but his 2016 release date didn’t reflect that.

In March of 2015, Freeman enlisted the help of the ACLU. He also filed a motion in Virginia Beach to get credit for the time served in Massachusetts, and a judge granted it.

Still, the Virginia Beach Sheriff’s Office didn’t release him, and the Virginia Department of Corrections didn’t correctly adjust his release date.

In July, Freeman filed another motion to get credit for time served, this time in Norfolk. Again, the judge granted it, but still Freeman sat in jail — already 25 days beyond his sentence.

On August 12, 2015, Freeman was released. He served 77 days longer than his calculated sentence.

ACLU of Virginia Legal Director Leslie Mehta said her team tried to resolve the matter without litigation, but couldn’t reach a settlement.

On June 19, 2017, the ACLU filed a lawsuit in federal court on Freeman’s behalf against the Virginia Department of Corrections, its director Harold Clarke, Virginia Beach Sheriff Ken Stolle and 10 employees of both the DOC and jail. They’re seeking both an admission of wrongdoing and financial damages for the violating Freeman’s rights to due process and liberty under the United States Constitution’s Eighth and Fourteenth Amendments.

A spokesperson for Stolle said he would not do an interview about ongoing litigation, but wrote in an email that the DOC was responsible for calculating Freeman’s sentence and giving the jail permission to release him. She also said the jail’s records department attempted to contact the DOC seven times to verify Freeman’s release date after the initial court order.

The Virginia Department of Corrections would not comment on the case.

As he battles both agencies in federal court, Freeman’s legal troubles dating back to the 2005 forgery case still are not over. In July of 2016, he tested positive on a drug test, violating his probation again. He has been back in the Virginia Beach City Jail since September 30, 2016.

During a July court hearing, Freeman told the judge he has had a drug problem — particularly with heroin — for 20 years. But he said from jail that he still values his liberty, and is working toward a different outcome once he is released.

“At the end of the day, it is my fault,” Freeman said. “I don’t believe that I was given the tools and help that I should have been given in order to succeed.”

Freeman’s participation in drug counseling in jail since his September arrest is documented, but the judge still sentenced him to another 18 months.

It’s not clear whether he’ll be credited the 77 days he is owed, and the Mehta did not immediately respond to whether that would lead to any changes in the federal case.

Regardless, Freeman said he hopes his fight leads to a change for others.

“That’s one of the main reasons I wanted to pursue this, to have people held accountable in these situations,” he said. “I know they get bombarded with all sorts of false claims, but there has to be some kind of safety valve in here for people who have credible issues.”

The ACLU was not able to provide the number of complaints it receives about inmates serving time beyond their sentences, but Mehta says there is an indication the problem is bigger than this one case.

“It’s our understanding that this is happening across the Commonwealth,” she said. “The Department of Corrections should be held accountable for that. They should make sure individuals who are incarcerated have their time calculated correctly and people are released when they need to be released.”