POLICY VICTORIES

During the 2019-2020 school year, the Student Pro Bono Clinic launched its first-ever Policy Team. The Policy Team aims to identify and advocate for reforms on the front end that will prevent wrongful convictions from happening in the first place.

A complement to our case teams, the Policy Team in its first year saw two major legislative victories, working toward legislative reforms that eradicate draconian roadblocks to exoneration for wrongfully convicted Virginians. In its second year, the Policy Team successfully advocated for amendments to Virginia’s Freedom of Information Act that expand access to closed criminal investigation records. Most recently, in its third year (the 2022 General Assembly session), the Policy Team helped improve Virginia law on monetary compensation for the wrongfully convicted.

HB397/SB755

Virginia inadequately compensates its wrongfully convicted. During the 2022 session, UVAIP successfully advocated for compensation reform. While several improvements for which UVAIP advocated were signed into law in 2022, we plan to return in coming sessions to continue to push for greater economic equity for the wrongfully convicted.

Improvements signed into law include:

• An initial lump sum for most exonerated individuals will be 25% of the total award, rather than 20% as outlined in prior state code. The remaining 75% will be paid out over a 10-year annuity, rather than 25 years.

• Defendants who accept Alford pleas (pleading guilty while maintaining their innocence) are now eligible for compensation.

• The award amount is now affixed at $55,000 per year of wrongful incarceration, with annual adjustment for inflation. (It previously was set at 90% of per capita income.)

• New language ensures that the award is not taxable by the state.

Virginia is one of only six states barring individuals who plead guilty (roughly 20% of exonerees) from receiving compensation. It is one of only three with a “clean hands bar” preventing individuals rightfully convicted of later, unrelated crimes from collecting compensation. Its $55,000/year rate is well below the national average of approximately $69,000/year. UVAIP plans to continue to work to address these and other deficiencies in coming sessions.

Virginia is the only state where statutory compensation is awarded by the legislature on a case-by-case basis. Therefore, UVAIP additionally advocated for individual bills compensating the six clients who had been exonerated within the last year (Bobbie Morman, Joey Carter, Emerson Stevens, Eric Weakley, Lamar Barnes, and Jervon Tillman). Collectively, the six received a total of $6.25 million in compensation for the years they spent wrongfully imprisoned.

The Policy Team worked with the Innocence Project on this effort.

HB 2004: Freedom of Information act

Historically, law enforcement in Virginia had discretion under Virginia’s Freedom of Information Act (FOIA) law to decide whether or not to release investigative files in inactive cases when requested by members of the public.

In 2021, the Policy Team successfully worked to change that. Under HB 2004, which was signed into law in April 2021, inactive criminal investigation files became public under FOIA. Now, innocence projects working in Virginia have access to critical information that could help exonerate the wrongfully convicted. This law is also a step toward greater police transparency. Crime victims and their families, too, supported this legislative change, which will provide answers and closure.

Said Director Jenny Givens of the law, “We are grateful that Virginia has taken another step toward transparency and fairness in its criminal justice system, and we are hopeful that this will allow us to uncover and remedy more wrongful convictions of innocent men and women in the Commonwealth.”

The Policy Team worked with the Innocence Project and Mid-Atlantic Innocence Project (together, the Virginia Innocence Coalition) on this effort.

HB 974/SB 511: writ of actual innocence reform

The primary mechanism to post-conviction exoneration for Virginians whose appeals processes are exhausted and whose cases do not have testable DNA is called the writ of actual innocence based on non-biological evidence. Enacted in 2004, the law’s scope was so narrow that as of 2020, only four individuals have ever been afforded relief under it.

Students on the Policy Team, our team of attorneys, and client Darnell Phillips all successfully worked to advocate for amendments to the law in order to make it a meaningful avenue to exoneration.

The new bill includes three major changes:

• Removing the guilty plea bar: Previously, the bill did not allow anyone who had pled guilty to petition for a writ of actual innocence. The new bill removes this limitation. More than 95% of criminal defendants nationwide plead guilty rather than going to trial.

• Removing the one writ limit: Previously, a petitioner could only petition for a writ of actual innocence based on non-biological evidence once — even if newly discovered evidence became available later. The new bill removes that limitation, allowing petitioners to petition for writs of actual innocence based on non-biological evidence again upon the discovery of new evidence.

• Changing the standard of proof: Previously, the statute required petitioners to prove by “clear and convincing evidence” that no rational trier of fact would have found the petitioner guilty. Now, petitioners must make their case by a “preponderance of the evidence.” The writ of actual innocence based on non-biological evidence has existed since 2004, and only four individuals have been exonerated under it; the new standard will make relief — until now, practically impossible for nearly every petitioner — more plausible for innocent petitioners. It follows the standard of the majority of states with similar statutes.

Director Jennifer Givens and client Darnell Phillips both spoke at the General Assembly multiple times to advocate for the bill and answer questions related to it.

The Policy Team worked alongside the Mid-Atlantic Innocence Project and the Innocence Project in New York to advocate for this bill.

sb 1071: dna testing reform

Previously, a quirk in Virginia’s DNA testing law allowed Virginia courts to consider evidence tested by Virginia’s Department of Forensic Science (“DFS”), but not test results from other, private labs. In some cases, though — such as the case of Darnell Phillips — DFS is unable to conduct tests that private labs can conduct because DFS simply lacks the technology.

The Policy Team this year successfully advocated for legislation allowing courts to consider DNA testing from labs other than Virginia state labs.

The Policy Team conceived of, drafted, and advocated for the bill in partnership with the Mid-Atlantic Innocence Project and the Innocence Project in New York. The legislation passed the House unanimously and passed the Senate 39-1.