Gov. Ralph Northam chose this Easter weekend to sign into laws sweeping progressive reforms including (1) making Virginia the first state in the South to enact comprehensive protections for the LGBTQ community against discrimination in housing, employment, public spaces, and credit applications; (2) repealing “medically-unnecessary restrictions on women’s healthcare,” including ultrasound requirements and 24-hour waiting periods for abortion; (3) gun control legislation requiring background checks on all firearm sales, requiring the reporting of lost and stolen firearms, limiting most people to one handgun purchase a month; and increasing the penalty for “recklessly leaving firearms” in the presence of children; (4) giving localities the ability to remove or alter Confederate monuments in their communities, and begin the process of replacing Virginia’s statue of Confederate General Robert E. Lee in the United States Capitol; and (5) expanding early voting to 45 days before an election without a stated excuse; repealing the state’s voter ID law; and making Election Day a holiday. That last one was a double-whammy because to maintain the same number of state holidays, he also repealed the Lee-Jackson Day holiday, established over 100 years ago to honor Confederate generals Robert E. Lee and Stonewall Jackson.
He passed into law even more reforms in the areas of the environment and criminal justice. But I want to focus on his amendments to the Actual Innocence Writ, passed into law in 2004, which was supposed to help the innocent get access to court to establish their innocence but which had so many procedural roadblocks that it was largely ineffective.
In fact, since 2004, only four Virginians have been granted relief under the Writ. The new law would remove hurdles to allow innocent people to overturn wrongful convictions by:
- Removing the one-writ limit: Previously people were limited to filing one writ of actual innocence based on non-biological evidence, even if new exonerating evidence was discovered at a later date. The new law removes the one writ limit to allow courts to consider new non-biological evidence of innocence when it becomes available.
- Removing bar on guilty pleas: Despite the fact that 1 in 10 DNA exonerees in the United States pleaded guilty to crimes they did not commit, the writ of innocence excluded people who entered plea agreements. The new law removes this restriction to allow people to apply whether they pleaded guilty or were convicted at trial.
- Creating a more reasonable burden of proof. Previously, Virginians were required to prove by “clear and convincing evidence” that no juror would have found guilt beyond a reasonable doubt. The new law changes the burden of proof to “preponderance of evidence” which is in line with the majority of other state laws regarding newly discovered evidence.
This law will help those who were wrongfully convicted or who were railroaded into taking guilty pleas. It provides a nice roadmap for other states to follow. Maybe next, Governor Northam can focus on getting the State to change its compensation to the wrongfully convicted. Under current law, exonerated Virginians receive 90% of the State’s per capita personal income for each year of incarceration plus a tuition award worth $10,000 in the State’s community college system. In 2019, Virginia’s per capita personal income was $60,116.00, meaning exonerees would get around $54,000 per year of wrongful incarceration. While NY has no specific limits, in general exonerees get between $150,000-$3000,000 from the State for every year of incarceration.
But we shouldn’t look a gift horse in the mouth. This Easter basket of reform was a tremendous present of individual rights in Virginia and will ease the burden of those struggling to free themselves from wrongful incarceration.
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