Can a Virginia court give credit toward fines and costs for community service work performed while a defendant is in a state prison, detention center, or diversion center?

Plain-English summary

Two Danville circuit court judges asked whether they could give defendants credit against criminal fines and costs for community service work performed while the defendants were in state prison, state detention centers, state diversion centers, or local correctional facilities. The Circuit Court for the City of Danville was regularly receiving requests from inmates in detention and diversion centers seeking such credit.

The Attorney General said no. Code § 19.2-354(C) authorizes courts to establish a program letting defendants discharge fines and costs by performing community service work "before or after imprisonment." The statute's plain language excludes work performed during incarceration. The Supreme Court of Virginia held in Charles v. Commonwealth (2005) that "participation in the Detention Center Incarceration Program is incarceration," so defendants in detention centers are not eligible. The same reasoning applies to diversion centers, which are a less stringent but still custodial form of confinement. The result is identical whether the detention or diversion center placement was imposed as a condition of probation or as a sentence: it is still incarceration for purposes of the statute. Because the statute does not authorize credit at all during incarceration, the judges' follow-up questions about whether credit is mandatory and how much credit is permissible became moot.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Code § 19.2-354(C) is part of Virginia's framework for collecting criminal fines and costs. Rather than locking up indigent defendants who cannot pay, the statute lets courts establish programs where defendants discharge fines and costs by performing community service. The key textual restriction is the "before or after imprisonment" phrase. The companion statute, Code § 19.2-354.1(B), requires courts to give defendants written notice of "the availability of earning credit toward [the] discharge of fines and costs through the performance of community service work." Together, the statutes envision community service as a substitute for payment or imprisonment, not as a complement to ongoing imprisonment.

The Supreme Court of Virginia's Charles v. Commonwealth (2005) is the key precedent. The Court held that "participation in the Detention Center Incarceration Program is incarceration," even though the program is structured differently from traditional prison. The detention center is a state facility operated by the Department of Corrections that uses a military-style regimen with work, education, and treatment. Despite the structured rehabilitation framework, the defendant is in state custody. The same reasoning extends to diversion centers, which are less stringent but still custodial. Charles also held that even when the detention center program is imposed as a condition of probation rather than as part of a sentence, it is still incarceration.

Because the statute's text is plain and unambiguous (the AG cited Cuccinelli for the bound-by-plain-meaning rule), there is no room for statutory construction. Courts cannot read "before or after imprisonment" to include "during imprisonment" without rewriting the statute. The AG noted that other state programs, such as work-release or supervised-community-service arrangements, can incorporate work performed by incarcerated persons, but the fines-and-costs credit under § 19.2-354(C) is not among them.

Common questions

Can a defendant perform community service to pay off fines and costs before or after imprisonment?
Yes, that is exactly what the statute authorizes. A court "shall establish a program and may provide an option" for community service credit "before or after imprisonment." The court sets the rate at which credits are earned and the manner of applying them.

What about work an inmate performs inside a state prison?
Not eligible for fines-and-costs credit under § 19.2-354(C). Whether the inmate is paid wages or accumulates good-conduct credits is a separate matter governed by other Code sections; this opinion concerns only the specific fines-and-costs credit program.

Is a detention center the same as a prison for this purpose?
According to Charles v. Commonwealth and this opinion, yes. The detention center is a form of incarceration. Defendants there are not eligible for community-service credit during their stay.

What about diversion centers?
The AG concluded the same reasoning applies to diversion centers. They are a less stringent form of confinement than detention centers, but still custodial. The Supreme Court's Charles rationale would extend to them.

Does the conclusion change if detention or diversion center placement was imposed as a condition of probation?
No. Charles specifically held that the detention center is incarceration even when imposed as a condition of probation. The legal nature of the confinement controls, not the legal label of the proceeding.

What is the purpose of the "before or after imprisonment" language?
The statute envisions community service as a tool for managing fines and costs outside of incarceration, either before custody begins or after the defendant is released. Allowing credit during custody would blur the distinction between fines, costs, and the underlying sentence of incarceration, which is a policy choice the General Assembly did not make.

Can a defendant request community-service credit for work done in a local jail?
According to this opinion, no. Local correctional facilities are explicitly within the scope of the AG's analysis, and the same "before or after imprisonment" textual rule applies.

Citations

• Va. Code § 19.2-354(C); § 19.2-354.1(B)
• Charles v. Commonwealth, 270 Va. 14 (2005)
• Town of South Hill v. Allen, 177 Va. 154 (1941) (plain meaning rule)
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 (2012)
• 2009 Op. Va. Att'y Gen. 69

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/opinions/2018/18-007Milam-Reynolds.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

December 7, 2018

The Honorable Joseph W. Milam Jr.
The Honorable James J. Reynolds
Circuit Court for the City of Danville
Courts and Jail Building
401 Patton Street
Post Office Box 1401
Danville, Virginia 24543-1401

Dear Judge Milam and Judge Reynolds:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.

Issues Presented
You have asked whether the provisions of § 19.2-354(C) of the Code of Virginia regarding
community service credit toward criminal fines and costs apply to inmates confined in state prisons, state
detention centers and diversion centers, and local correctional facilities. Specifically, you question
(1) whether a court may in its discretion allow credit toward fines and costs for community service work
performed by inmates confined in such facilities; (2) whether the court must allow such credit; and (3) if
the credits are permissible or mandatory, what is the extent of the credits that may be given under statute.

Applicable Law and Discussion
Section 19.2-354(C) of the Code provides in relevant part as follows:

[A] court shall establish a program and may provide an option to any person upon whom
a fine and costs have been imposed to discharge all or part of the fine or costs by earning
credits for the performance of community service work before or after imprisonment.
The program shall specify the rate at which credits are earned and provide for the manner
of applying earned credits against the fine or costs. [...] The court shall have such other
authority as is reasonably necessary for or incidental to carrying out this program.[1]

Your first question is whether a court may in its discretion allow credit toward fines and costs for
community service work performed by inmates while confined in a state prison, state detention center or
diversion center, and local correctional facilities. Section 19.2-354(C) limits its application to community
service work performed "before or after imprisonment." Community service work performed during
incarceration would not fall within those parameters and, therefore, would not be subject to the statute.
Because the statutory language is plain and unambiguous, it does not allow for statutory construction.[2]
"When the language of a statute is unambiguous, we are bound by the plain meaning of that language."[3]

You relate that the specific focus of your request is confinement in state detention centers and
diversion centers, which represent less traditional methods of confinement. You state that the Circuit
Court for the City of Danville regularly receives requests from individuals in detention and diversion
centers to receive credits for community service work. The Supreme Court of Virginia, in Charles v.
Commonwealth, held that "participation in the Detention Center Incarceration Program is incarceration."[4]
Because § 19.2-354(C) only applies to offenders before or after their incarceration and does not apply to
incarcerated persons, offenders are not eligible to receive credit for community service performed while
actively imprisoned or while participating in the detention center or diversion center programs. This
would be true even if the detention center incarceration program was imposed as a condition of
probation.[5] Essentially the same rationale the Court used in Charles to find that the detention center
incarceration program constituted incarceration would apply to the diversion center incarceration
program, although it represents a less stringent form of confinement than a detention center.

Because courts do not have discretion to allow credit toward fines and costs for community
service work performed during incarceration, your other questions, whether the statute mandates such
credits and what extent of credit may be given, are rendered moot.

Conclusion

Accordingly, it is my opinion that § 19.2-354(C) only applies to offenders performing community
service work before or after their imprisonment. Therefore, courts do not have discretion to allow credit
toward fines and costs for community service work performed by a person who is confined in a state
prison, state detention center or diversion center, or local correctional facility.
With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General

1. VA. CODE ANN. § 19.2-354(C) (Supp. 2018) (emphasis added); see also VA. CODE ANN. § 19.2-354.1(B) (Supp. 2018) (providing that the court must give a defendant written notice of "the availability of earning credit toward [the] discharge of fines and costs through the performance of community service work").
2. Town of South Hill v. Allen, 177 Va. 154, 164, 12 S.E.2d 770, 773-74 (1941).
3. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (citations omitted).
4. Charles v. Commonwealth, 270 Va. 14, 20, 613 S.E.2d 432, 435 (2005); see also 2009 Op. Va. Att'y Gen. 69, 72 n.14.
5. Charles, 270 Va. at 20, 613 S.E.2d at 435.