Post-Conviction Relief: Actual Innocence, Clemency, Parole, Expungements, Etc.

Parole

As the Washington Post documented earlier this year, twenty five years ago, Virginia “did away with” parole, “the practice of releasing prisoners who had served a portion of their sentence,” and replaced it with a “truth in sentencing” system that guarantees all inmates serve at least 85% of their sentences. This led directly to an increase in the length of penitentiary sentences, and the elimination of one of the strongest incentives for Virginia inmates to rehabilitate themselves. As Governor Northam himself argued, eliminating parole “led to crowded prisons, escalating medical costs for aging inmates and inequities in sentencing that disproportionately affect people of color.”

Ever since the 1995 repeal, efforts to restore Virginia’s system of parole have gained steam, and the advocacy community has grown, finally reaching what appeared to be a critical mass in the 2020 legislative session. Multiple bills were proposed which would have made “thousands of inmates” eligible for release based on how they had grown and changed while incarcerated, upon proof they were rehabilitated and posed no danger to the public. These bills were unceremoniously killed by the Virginia House of Delegates, despite overwhelming support from Democrats and many Republicans. In fact, the House of Delegates refused to even vote on the measure in Committee. This inaction is unacceptable. The time for reform to Virginia’s “truth in sentencing” laws is now.

Compassionate Release

As documented in a recent article in the Virginia Mercury, the General Assembly also refused to reform Virginia’s stingy requirements for compassionate release; a decision that seems especially cruel since the beginning of the pandemic. Quoting Senator Scott Surovell, the Mercury noted as follows:

“[Surovell] noted legislation allowing for compassionate release of terminally ill and incapacitated prisoners passed the Senate last year when it was under Republican control and again this year, only to die in a Democratic-controlled subcommittee in the House of Delegates.

Virginia currently has the second-most restrictive compassionate release policies for prisoners with terminal illness of any state in the country and is the only state that doesn’t allow for early release of inmates who are permanently incapacitated or have other complex health issues, according to a 2018 report by state auditors.

‘I don’t know why we need to study that,’ Surovell said. ‘It seems to me that simply allowing for parole of those who are terminally ill or permanently disabled is a pretty minor step.’”

Clemency

An excellent article in Blue Virginia documents Virginia’s reluctance to rely on executive clemency, and why that matters:

“The criminal justice and court systems—nationally and in Virginia—are known to suffer from racial inequities. These systems have disproportionately harmed communities of color. Governor Northam has stated that he wants to spend his tenure remedying racial inequities in the Commonwealth. He has promised bold, sweeping criminal justice reform, saying “he wants Virginia to approach criminal justice with compassion, fairness and mercy.” He has done a good job of using his bully pulpit to push for legislative changes such as marijuana legalization, increasing the felony larceny rate, and ending driver’s license suspensions. But he has additional executive tools at his disposal, granted in the Virginia Constitution: “to remit fines and penalties…to grant reprieves and pardons after conviction…to remove political disabilities [restore rights]…and to commute capital punishment.”

Several governors have recently used their clemency powers in bold ways. Governor McAuliffe’s hallmark moment was boldly using these clemency tools to restore voting rights to over 200,000 Virginians. Governor Northam has an opportunity here as well, to meet his commitment to reduce mass incarceration, improve the equity in the criminal justice system, help give returning citizens a better chance at success, and simply show mercy to those caught up in this system.”

The article then provides an array of potential actions the Governor could take:

Good:

Simple pardon of everyone convicted of marijuana possession
Simple pardon of everyone convicted of a nonviolent crime, who has been out for at least X years (Northam could choose an appropriate number, perhaps 5 years) without re-offending
Pardon all minors convicted of prostitution (Note: why is this even a crime? Shouldn’t the minor here be a victim of statutory rape?)
Absolute pardon of everyone convicted under a law that has been found unconstitutional (i.e. habitual drunkness, consensual sodomy, etc.)
Commute felony larceny sentences between $200 and $1000 since 2000 down to a misdemeanor sentence
Restore voting rights for those who have completed their sentence (including probation), but have outstanding fines and fees
Conditional pardon (with transfer to secure mental health facility) for those serving long sentences, who suffer from serious mental illness that was an issue at the time of the crime. (For example, Vince Gilmer, Christopher Sharikas)
Absolute pardon of those convicted who’ve completed their sentence and have a strong innocence claim. (For example, Darnell Phillips)
Standard gubernatorial pardons for those convicted and serving time who have strong innocence claims or extreme disproportionate sentences (For example, Ivan Teleguz and Justin Wolfe. Technically, the Administration has an unofficial rule of only considering such pardons to those who have plead not guilty, which would exclude Justin, who plead guilty to avoid a death sentence. Considering how frequently people take a plea under threat of harsher sentences, this rule seems ill-conceived.)

Better:

Commute sentence of everyone serving time for any marijuana-related offense (includes dealing)
Simple pardon of everyone convicted of a nonviolent crime plus all misdemeanors, who has been out for at least X years (Northam could choose an appropriate number) without re-offending
Simple pardon of everyone convicted of a nonviolent crime, who has been out at least X years with nothing more than technical parole/probation violations (behavior that violates a condition of probation that is not otherwise a crime)
Simple pardon of all those convicted of prostitution
Restore voting rights to everyone on parole or probation
Restore voting rights to everyone currently incarcerated for (some specified subset of) felonies
Remit all fines and fees for those who are indigent
Commute both remaining death sentences to life

Best:

Simple pardon of everyone convicted of any marijuana-related offense (plus commutation)
Simple pardon of everyone convicted of a nonviolent crime, plus all misdemeanors, and (some specified subset of) violent felonies who has been out at least X years without re-offending and/or only technical parole/probation violations
Restore voting rights to everyone
Commute remainder of sentence of anyone who has served more than X years for a nonviolent drug crime (could exclude dealing to minors)

Finality of Judgments

Virginia is so certain "its criminal justice system works correctly the first time that the Virginia Supreme Court has all but closed the door on the right of those convicted to prove their innocence after conviction." Except in very limited circumstances -- a not guilty plea and new evidence establishing innocence -- defendants have only 21-days after sentencing to seek meaningful relief from the court that convicted them. Further, rates of reversal by Virginia's higher courts are among the very lowest in the country, and the Commonwealth is frequently committed to fighting exonerations, even when substantial evidence supports them.