RICHMOND — If new DNA evidence turns up after trial, some convicted felons can ask a court to review it and declare them innocent. But not all; those who pleaded guilty are barred from later petitioning for a writ of actual innocence.
On Tuesday, Gov. Terry McAuliffe (D) proposed a bill that would make any felon eligible to petition the court based on new DNA evidence, regardless of how he or she originally pleaded.
The measure is an acknowledgment that some plead guilty to crimes they did not commit, said McAuliffe spokesman Brian Coy.
“If you pleaded guilty [falsely], which happens at times, state law says even if new evidence arises, you are barred [from seeking a writ of actual innocence],” Coy said. “A judge would not consider it. It’s kind of an arbitrary prohibition.”
McAuliffe announced the bill as part of a package of criminal justice reforms proposed for the General Assembly session that begins Jan. 11. Another bill would raise the felony larceny threshold to $500 — up from the current $200, set in 1980, which McAuliffe said was the lowest in the country. Two others are aimed at ending the practice of suspending driver’s licenses because of a driver’s inability to pay outstanding court fees — something that is the subject of a pending class-action lawsuit.
“Throughout my administration, I have worked with Virginia’s public safety officials, the legislature, and the courts to assure that we have a criminal justice system that is fair and seeks true justice,” McAuliffe said in a written statement. “The changes we are proposing today seek to hold offenders responsible for their crimes in a way that maintains opportunities for rehabilitation and future productivity.”
McAuliffe will have to win over a Republican-controlled General Assembly. House Speaker William J. Howell (R-Stafford) was noncommittal on Tuesday.
“We will begin carefully reviewing all of Governor McAuliffe’s legislative proposals relating to criminal justice reform this coming session,” Howell said in a statement.
Steven D. Benjamin, a prominent Virginia defense attorney, said McAuliffe’s proposal is a needed change to the writ-of-actual-innocence law.
“It makes obvious sense,” Benjamin said. “It is well known that people plead guilty even when they are innocent. They plead guilty to get a favorable plea deal, to avoid the risk of trial. Sometimes, they can’t afford an adequate defense. Society has no interest keeping an innocent person in prison.”
Shawn Ambrust, executive director of the Mid-Atlantic Innocence Project, said the change would not result in a flood of innocence petitions, but it was an important symbolic step. Nationally, about 10 percent of people who have been exonerated by DNA evidence had pleaded guilty, she said.
Before 2001, Virginia barred introduction of new evidence in a case three weeks after sentencing. But after some high-profile exonerations, that changed.
The state legislature created a procedure that allows those convicted of crimes to petition the Virginia Supreme Court to overturn their convictions if newly discovered DNA evidence demonstrates their innocence. Except in certain instances, the relief is available only to those who pleaded not guilty at trial .
In 2004, the legislature created a second writ that allows convicts to petition the courts on the basis of non-DNA evidence such as fingerprints or testimony that shows their innocence.
McAuliffe’s proposal related to driver’s license suspensions drew a cautious response from Howell, whose statement got into specifics only on that issue.
“I am very sympathetic toward individuals who get trapped in a vicious cycle of having their license revoked, not being able to travel to work, losing their job, and not being able to pay off court costs,” Howell said. “However, the General Assembly must be very careful as this issue is currently being litigated in court.”
In a class-action lawsuit filed in federal court in July, the Legal Aid Justice Center is challenging the Virginia Department of Motor Vehicles’ practice of suspending licenses of those who cannot pay fines and court costs. The suit claims the DMV is unconstitutionally punishing the poor for their poverty. In November, the U.S. Justice Department filed a brief in the case, siding with plaintiffs.
Nearly 650,000 Virginians have suspended driver’s licenses because they cannot afford to pay their legal fees and court costs, according to McAuliffe’s office.
“We should never cease to hold offenders accountable for their crimes, but those punishments must be levied in a way that promotes restoration,” said Brian Moran, a former prosecutor and McAuliffe’s secretary of public safety and homeland security.