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					On the Record: The Legal Disconnect Between Exoneration and Expungement in Virginia
by Lisa Manning Wrongful Convictions Professor Ross Haine Spring 2007
“Indeed the legal system is capable of creating few errors that have a greater impact on an individual than to incarcerate him when he has committed no crime. . . .The legislature and legal system have a responsibility to admit the mistake and diligently attempt to make the person as whole as possible.” - O‟Neil v. Ohio, 1984

I. Introduction ............................................................................................................................... 1 II. Prejudice Based on Criminal Record..................................................................................... 2 A. Civil Rights: Voting ............................................................................................................. 3 B. Economic Rights: Employment........................................................................................... 4 III. Legal Framework ................................................................................................................... 5 A. Principles of Expungement Law & Procedure .................................................................. 6 Chart: Paths from Wrongful Conviction to Expungement............................................... 8 B. Absolute, but Not Automatic Pardon ................................................................................. 9 C. Actual Innocence ................................................................................................................ 10 D. Applying Expungement & Actual Innocence Law: The Case of Darrell Rice ............. 13 IV. Why Not Expungement? ...................................................................................................... 14 A. The Statutes that Were ...................................................................................................... 14 B. Organizational Wrongdoing ............................................................................................. 17 V. Conclusion............................................................................................................................... 17 Bibliography ................................................................................................................................ 18

I. Introduction The problem of wrongful convictions is fairly well-publicized in the US today, but most media coverage focuses on the dramatic moment of freedom and neglects the difficult reacclimation to daily life. Post-exoneration interviews with innocent men and women focus on such topics as survival in jail, their legal battle and reunion with family. Although freedom is no doubt an elated moment, both the media and judiciary fail to realize that the exoneree will continue to suffer the legal and social stigma of his conviction until he is compensated and his record destroyed. The true effects of a wrongful conviction are not only the deprivation of liberty, but the reality of the daily aftermath – finding housing, applying for jobs and obtaining social services – trying to rebuild a life. This process is already extremely difficult for most exonerees, but can be made near impossible if the arrest and court records related to their wrongful conviction remain public and continue to be used against them outside. To date, at least 198 wrongfully convicted inmates have been exonerated nationwide due to DNA testing, and an estimated 200+ by other means.1 The Life After Exoneration Program is “the only national organization dedicated [exclusively] to helping survivors of wrongful conviction.”2 The program not only provides post-exoneration assistance, but also gathers statistics on exonerees and wrongful conviction legislation by state to illustrate the need for policy reform. For example, of their 25 member exonerees in California, half are underemployed, uninsured, dependant on others and/or lacking basic needs.3 The exonerees group spent an average time of 12 years in jail, yet the state has compensated only 27% of them.4 According to Life After Exoneration, most exonerees have no financial resources when they are

1 2

Innocence Project; Life After Exoneration Program. Life After Exoneration Program, California Fact Sheet, 3 Id. 4 Id.


released from prison, and “even after they win release on grounds of innocence, there is [often] no automatic expungement of the wrongful conviction from the exoneree‟s criminal record.”5 As a result, exonerees are denied other rights and resources, such as employment, education and housing. The Innocence Project also maintains statistics on the inmates that it has helped exonerate. The State of Virginia has compensated only one of the ten Virginia Innocence Project exonerees to date.6 Although the State pardoned several of the remaining inmates over ten years ago, it has failed to grant any remuneration under its compensation statute and has created difficulty in record expungement. The lack of resources provided to exonerees creates can even more dire need for employment and social services from which many “ex-felons” are excluded due to their criminal records. This paper looks at the effects of difficult path from wrongful conviction to expungement and how it can be remedied.

II. Prejudice Based on Criminal Record A criminal record not only prejudices an exoneree in terms of social stigma, but infringes on both civil and economic rights. Today DNA is a publicly accepted science, such that DNA exonerations are generally believed as wrongful convictions. This common understanding has greatly reduced the social stigma attached to early exonerees like Kirk Bloodsworth, who was met with public ostracism and death threats upon his release and homecoming.7 Although social obstacles may have lessened, ex-felons, even when wrongfully convicted, face concrete barriers with education, employment, access to financial benefits, travel restrictions, and any future

5 6

Id. The Innocence Project, 7 Tim Junkin, Bloodsworth (2004) at 264-65.


criminal sentencing, all as a result of a criminal record. Much of the blame for lack of exoneree expungement falls with the state law in the form of procedural and discretionary barriers. Not until very recently did Virginia pass its first legislation entitling some exonerees to expungment of their records.8 Until further laws are passed that guarantee expungement in all wrongful convictions, exonerees will continue to receive second class rights. A. Civil Rights: Voting Voting is the key civil right deprived after a felony conviction. Restoration of rights is predicated expungment and/or a pardon. Virginia case and statutory law creates a two tiered system for an ex-felon to regain voting rights. First, the citizen must petition the trial court to determine whether the he meets the minimum requirements for restoration of such rights and then the governor must grant re-registration to vote.9 Most states disallow currently incarcerated felons from voting, but are more lenient with parolees and especially probationers. Virginia bars all three categories from voting and further mandates a five to seven year waiting period before felons can petition to have their rights reinstated.10 As part of the post-exoneration process, disenfranchisement remains a key challenge in Virginia and the Nation as a whole. In the 2000 Presidential election, 4.7 million people or 2% of the U.S. population could not vote because of having a felony conviction record.11 In calculations of ongoing disenfranchisement, Virginia‟s figures were less than the national average of 1.45%, but still substantial: 60,000 barred from the polls or 1.06% of the State population.12 These figures include an undetermined number of wrongfully convicted persons. And as long as expungement and restoration of rights remain highly discretionary processes,
8 9

H.R. 2076 & S.B. 880, Gen. Assem. Reg. Sess. (Va. 2007). In re Phillips, 265 Va. 81, 574 S.E.2d 270 (2003). 10 Id. at 8. 11 Hull, Elizabeth A., The Disenfranchisement of Ex-Felons (2006) at 1. 12 Id. at 5.


disenfranchisement can effectively become a life ban on voting if a convict‟s petitions are repeatedly denied. B. Economic Rights: Employment Employment presents perhaps the biggest hurdle to a person released from many years of incarceration with minimal financial resources. Many state criminal record statutes open with a policy statement addressing concerns of “over-punishment” of minors, misdemeanors and wrongfully charged defendants.13 Regardless of a state‟s intent to alleviate employment discrimination based on criminal record, employers can act on information of an employee‟s record regardless of conviction or expungement status.14 Even when a convicted defendant has already petitioned to expunge his court record (and in some states, even where expungement is granted), an employer may legally use the record to deny or terminate employment.15 Exonerees unable to expunge can fall into a particularly difficult no mans land by being denied employment because of their “record” and not qualifying for ex-offender support programs because of their exoneration.16 A national analysis of employment arbitration regarding termination based on criminal record found that employers are allowed to use criminal procedures and penalties to a much greater extent than most courts.17 In employment, the standard is “not the legal concept of „innocent until proven guilty‟ but, rather, the Company‟s ability to protect its reputation, business interests, and the public safety and welfare of its workforce.”18 Justified by such alternate interests, employers are thereby allowed substantial leeway in discrimination based on criminal

13 14

See, e.g. Va Code 19.3-372. Hill & Wright, Employee Lifestyle and Off-Duty Conduct Regulation (1993) at 215-16. 15 Hill & Wright at 216. 16 Dwyer, Jim, Peter Neufeld and Barry Scheck, Annual Innocence (2000) at 224-25. 17 Hill & Wright at 207-15. 18 Id. at 209.


record. Employers do not have to look into underlying facts, such as wrongful conviction, and can engage in such practices as: suspension without pay for an arrest, differential treatment of the same conviction based on plea, and punishment even for a nolle prosequi.19 The national employment arbitration standard is that any type of criminal record can constitute just cause in employee termination or refusal to hire, and further, that employers are not required to consider expungement of records in grievance procedures concerning those records.20

III. Legal Framework The Virginia General Assembly introduces Code § 19.2-392 on treatment of criminal records with the following statement of policy:

The General Assembly finds that arrest records can be a hindrance to an innocent citizen's ability to obtain employment, an education and to obtain credit. It further finds that the police and court records of those of its citizens who have been absolutely pardoned for crimes for which they have been unjustly convicted can also be a hindrance. This chapter is intended to protect such persons from the unwarranted damage which may occur as a result of being arrested and convicted.21 This statement expresses good intention, but establishes no express mechanism for dealing with such records and grossly underestimates the detrimental effects thereof. Until March 2007, no part of the Virginia Code stated that a person who is exonerated is entitled to have the arrest and court records of the wrongful conviction expunged.22 Now an exoneree is eligible for automatic expungement if he is granted a writ of actual innocence.23 In all other wrongful convictions, including most false confession and guilty plea cases, there is no such guarantee. Insead, the law
19 20

Id. at 207-212. Id. at 216. 21 Va. Code § 19.2-392.1. 22 Virginia is not alone in this legal oversight. Many other states, including both California and Texas, do not provide for expungement after a wrongful conviction. 23 H.R. 2076 & S.B. 880, Gen. Assem. Reg. Sess. (Va. 2007).


on this subject is found in the confusing intersection of the statutes regarding expungement, gubernatorial pardons and actual innocence. A. Principles of Expungement Law & Procedure Much of the complication surrounding expungement after exoneration has to do with criminal procedure that occurs at the trial phase of a case, or even earlier. The specific crimes charged, a defendant‟s plea and the type of sentence all determine whether, how and what parts of a record can be expunged. While “expungement” is generally the term used to refer to any effort to limit public access to the defendant‟s arrest and court records, the degrees and legal parameters of such procedures fall into three distinct groups: (1) non-public (2) sealed and (3) (truly) expunged. Recognizing that there exist variations by state, the definition and legal use of each category can be summarized as follows: ▪ non-public records: substantive files on arrest and court proceedings are removed from court and state law enforcement files and placed with special filing clerk at the court who is only allowed to release the contents for specific purposes; non-detailed listing of offender name, arrest date, case number and status may still be accessible to law enforcement and public When used: Suspended Sentence (after successful completion) Probation Before Judgment (after successful completion) Juvenile Court Sentence (while pending) ▪ sealed records: all arrest and court records, and references thereto, are removed from the court and law enforcement systems to an entirely separate, secret storage area; access to the files can only be obtained by a judicial order When used: Juvenile Records (once sentence is completed) Nolle Prosequi Suspended Sentence (after successful petition to seal) Probation Before Judgment (after successful petition to seal) ▪ expunged records: all court records are physically destroyed and deleted from court and law enforcement systems to render the proceedings as if they never happened When used: Juvenile Records (after certain passage of time) Acquittal/Nolle Prosequi/Dismissal Pardon Actual Innocence24

Summary of criminal procedures from Virginia, Maryland and the District of Columbia.


The differences among types of record restriction are great cause for confusion. What many defendants refer to and understand as “expungement” actually only provides for partial privacy of their record. The internet age coupled with heightened national security have further eroded the legal protections against discrimination based on criminal history. As part of this trend, federal and state laws have adopted an increasing number of exceptions to expungement, including to measures rectifying wrongful convictions. The relevant Virginia statute only allows a defendant to petition for expungement if he is charged with a crime and then receives (1) an acquittal (2) a nolle prosequi or dismissal, (3) an absolute pardon, or as of July 1, 2007, (4) a writ of actual innocence.25 While the first two dispositions follow a relatively standard state procedure,26 a convicted defendant who has received an absolute pardon bears the additional burden of “setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge.”27 In Virginia, petitioning for expungement is by no means an automatic grant, despite the fact that the only defendants even qualified to file have been acquitted, had their charges dismissed, or received a pardon or innocence writ. Other states allow for automatic expungement after good behavior for a set period of time, even where the defendant has plead guilty.28 Virginia law does allow for a more liberal standard with misdemeanor cases, that once the defendant files a complete expungment petition, the burden shifts to the prosecutor to show

“A. If a person is charged with the commission of a crime and 1. Is acquitted, or 2. A nolle prosequi is taken or the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to § 19.2-151, or 3. Is granted an absolute pardon for the commission of a crime for which he has been unjustly convicted, he may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge. B. If any person whose name or other identification has been used without his consent or authorization by another person who has been charged or arrested using such name or identification, he may file a petition with the court disposing of the charge for relief pursuant to this section.” Va Code § 19.2-392.2. 26 See, e.g. Maryland Criminal Code. 27 Va Code § 19.2-392.2. 28 See, e.g. Maryland Criminal Code.


“good cause” why the order should not be granted.29 If the Commonwealth charged the defendant with a felony, however, the Court must find “that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner [emphasis added].”30 As evidenced by the additional expungement requirements imposed on absolute pardon recipients and the overly complex nature of the statute, the Virginia General Assembly envisions that not all wrongful convictions rise to the level of “manifest injustice.” Herein lies the first fundamental flaw in the expungement procedure – the Court has discretion to keep public criminal records of innocent defendants.

Chart: Paths from Wrongful Conviction to Expungement

Wrongful conviction Petition for habeas corpus Petition for Pardon
Expungement statute (3) Absolute pardon

Motion for new trial
Trial outcome: acquittal
Expungement statute (1) Acquittal

Petition for writ of Actual Innocence Automatic expungment, 2007 Bill Petition for Clemency Expungement statute (3) Absolute pardon

29 30

Va Code § 19.2-392.2. Id.


B. Absolute, but Not Automatic Pardon To even be eligible to file a petition under the expungement statute, in many cases a wrongfully convicted inmate must first receive an absolute pardon from the governor. The absolute pardon procedure adds another potential barrier of discretion on the path to expungement. The Virginia Code states that the governor has “power . . . to grant pardons or reprieves” under Article V §12 of the state Constitution.31 The relevant Constitutional provision is also discretionary, in that the governor has “the power . . . to grant reprieves and pardons after conviction,” but is not legally obligated to do so even in cases of wrongful conviction.32 For example, in the now celebrated case of Earl Washington, who came within several days of wrongful execution, the Virginia Governor first chose to merely reduce his sentence when exculpatory biological evidence arose in the case. Specifically, in 1993, DNA testing excluded Earl Washington as the donor biological evidence found at the crime scene.33 Presumably for political reasons, Governor Wilder exercised discretion in the use of his gubernatorial Article V §12 power and chose not to grant an absolute pardon. Washington then spent six more years in jail before Governor Gilmore agreed to further DNA tests which then led to his pardon for capital murder.34 Case law on Article V §12 of the Virginia Constitution places further discretion with the governor on the issues of whether to “favorably resolve” the criminal conviction35 and restore the civil rights of a pardoned convict.36 The 1994 case of Snyder v. City of Alexandria interpreted that an Article V §12 pardon constitutes favorable legal termination of a criminal conviction only
31 32

Va. Code § 53.1-229. Va. Const. Art. V, § 12. 33 The Innocence Project and Margaret Edds, An Expendable Man: The Near Execution of Earl Washington Jr. (2003). 34 Id. 35 See Snyder v. City of Alexandria, 870 F. Supp. 672 (E.D. Va. 1994). 36 See United States v. Neely, U.S. App. LEXIS 8162 (4th Cir. Apr. 30, 2003) and In re Phillips, 265 Va. 81, 574 S.E.2d 27 2003.


if the pardon “substantially impugns or discredits the conviction, which in turn, is a function of the pardon's terms and the reasons for its issuance.”37 The governor can therefore determine the legal weight given the pardon, including common law right to recover damages for malicious prosecution, by dictating the terms of the pardon itself.38 The language of the expungement statute only considers petitions from inmates who have received “absolute pardons.” If the pardon is incomplete or does not stipulate innocence, then even a wrongfully convicted person could be ineligible for expungement. The governor can grant a pardon at any stage post-conviction. The terms of an innocence writ or gubernatorial pardon are the only way in which a convicted felon, wrongfully or not, can regain his civil rights. The Fourth Circuit Court of Appeals held in US v. Neely that a felon‟s civil rights, such as voting and possession of a firearm, “are not automatically restored by the passage of time” and “[t]o regain his rights, a felon must receive a pardon from the governor.”39 As articulated in the favorable termination of the conviction standard, pardons usually occur after a showing of new evidence and/or judicial error when the defendant has drawn attention to his wrongful conviction by filing a petition for a writ of habeas corpus or a motion for a new trial. Not only does the governor have absolute discretion in granting pardons, but he is “not required to review or accept for submission any clemency petition, even if the applicant presents compelling evidence of actual innocence.”40 C. Actual Innocence Whether a pardon and then expungement is granted depends largely on the underlying facts of the case and whether the prosecutor, defense attorney and judge act with reasonable
37 38

Snyder v. City of Alexandria, 870 F. Supp. 672 (E.D. Va. 1994). Id. 39 United States v. Neely, U.S. App. LEXIS 8162 (4th Cir. Apr. 30, 2003). 40 The Innocence Commission for Virginia, A Vision for Justice: Report and Recommendations Regarding Wrongful Convictions in the Commonwealth of Virginia (2005) at 100-01.


discretion. Actual innocence law is no longer subject to such guesswork because recently the Virginia House and Senate unanimously voted for legislation that requires that “an order of expungement shall be immediately granted” by the circuit court after the appellate court grants a writ of actual innocence.41 While this new law represents an important step toward expungement for all exonerees, it ignores the fact that Virginia‟s actual innocence law only covers a limited number of wrongful convictions. The third major flaw in post-exoneration expungement is the impact of a defendant‟s plea on actual innocence, and thereby the status of his criminal record. The Virginia General Assembly passed its original Actual Innocence Statute with great fanfare in 2001, in large part in response to the highly-publicized and especially egregious wrongful conviction case of Earl Washington.42 Perhaps because DNA constituted the prime evidence for Mr. Washington‟s exoneration, the General Assembly limited the original writ of actual innocence to biological evidence.43 The Commonwealth extended a more limited version of the writ to non-biological evidence cases in 2004.44 In both statutes, the burden is on the petitioner to prove by “clear and convincing evidence” that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”45 If the petition is granted, a defendant‟s conviction is then vacated or modified and the related record expunged.46 In cases of newly-discovered biological evidence, Virginia Code allows the Supreme Court to issue writs of actual innocence only for currently incarcerated defendants sentenced to death, convicted of a Class I or II felony, a felony with a maximum sentence of life, or convicted,

41 42

H.R. 2076 & S.B. 880, Gen. Assem. Reg. Sess. (Va. 2007). Margaret Edds, An Expendable Man: The Near Execution of Earl Washington Jr. (2003). 43 Va. Code § 19.2-327.2. 44 Ronald J. Bacigal, Virginia Practice: Criminal Procedure 2007 Edition (2007) at 656-57. 45 Va. Code § 19.2-327.5. 46 Id. and H.R. 2076 & S.B. 880, Gen. Assem. Reg. Sess. (Va. 2007).


after pleading not guilty, of another felony.47 To petition for a writ in non-biological cases, the inmate must have pled not guilty to a felony irrespective of his sentence.48 The requirement that the defendant plead not guilty in convictions below a Class II felony in biological cases and in all non-biological cases is based on the rose-tinted assumption that innocent men do not plead guilty, especially to high level felonies. The statute thereby bars the group it should be most worried about: innocent defendants who plead guilty under duress, coercion and/or fear of more dire consequences in front of a jury. If a defendant is actually innocent, the government will likely have a weak case against him, especially if there is no biological evidence of the crime. The prosecution will therefore be more eager to allow a plea to a lesser crime than the original felony charge. For example, Virginia exonerated David Vasquez prior to the enactment of the Actual Innocence Statute, but he would have been ineligible under the law because he pled guilty to avoid a death sentence and was freed because of non-biological evidence.49 These innocent inmates are precisely the group that Virginia excludes from the Actual Innocence Statute and therefore from guaranteed expungement: defendants who have pled to a lesser felony or to a crime where there is no biological evidence.

“Issuing a writ of actual innocence. Notwithstanding any other provision of law or rule of court, upon a petition of a person incarcerated who was convicted of a felony upon a plea of not guilty, or for any person, regardless of the plea, sentenced to death, or convicted of (i) a Class 1 felony, (ii) a Class 2 felony or (iii) any felony for which the maximum penalty is imprisonment for life, the Supreme Court shall have the authority to issue writs of actual innocence under this chapter. The writ shall lie to the circuit court that entered the felony conviction; and that court shall have the authority to conduct hearings, as provided for in § 19.2-327.5, on such a petition as directed by order from the Supreme Court.” Va Code § 19.2-327.2. 48 Issuance of writ of actual innocence based on nonbiological evidence. Notwithstanding any other provision of law or rule of court, upon a petition of a person who was convicted of a felony upon a plea of not guilty, the Court of Appeals shall have the authority to issue writs of actual innocence under this chapter. Only one such writ based upon such conviction may be filed by a petitioner. The writ shall lie to the court that entered the conviction; and that court shall have the authority to conduct hearings, as provided for in this chapter, on such a petition as directed by order from the Court of Appeals. In accordance with §§ 17.1-411 and 19.2-317, either party may appeal a final decision of the Court of Appeals to the Supreme Court of Virginia. Upon an appeal from the Court of Appeals, the Supreme Court of Virginia shall have the authority to issue writs in accordance with the provisions of this chapter. Va. Code § 19.2-327.10. See also In re Wilson, 44 Va.App. 13, 602 S.E. 2d 408 (2004) and In re Carpitcher 47 Va.App. 513, 624 S.E. 2d 700 (2006). 49 The Innocence Commission for Virginia, A Vision for Justice: Report and Recommendations Regarding Wrongful Convictions in the Commonwealth of Virginia (2005) at 100-01.


D. Applying Expungement & Actual Innocence Law: The Case of Darrell Rice Guilty pleas in cases where the defendant is likely innocent are unfortunately an all too frequent occurrence, even where a defendant maintains his innocence. The recent prosecution of Darrell Rice for the murders of two female hikers in Shenandoah National Park is a prime illustration.50 The media and lawyers involved in the case appear increasingly convinced that Mr. Rice is in no way connected to the crime, including a lack of any biological evidence linking him to the scene.51 Nonetheless, the federal government proceeded with trying him for the murders.52 As the prosecutor‟s case began to unravel at trial, he approached the defense with a plea agreement. Mr. Rice had maintained his innocence throughout and did not want to plead guilty. Defense counsel advised him to accept a plea deal to avoid the risk of a murder conviction by the jury, which was possible given the highly publicized and violent nature of the crime. After a series of plea negotiations, Mr. Rice plead to the lowest possible charge in exchange for time served and was released from prison.53 Although the prosecution of Darrell Rice fell under federal jurisdiction because the murders occurred in a national park, the facts of the case are useful to illustrate the expungement loophole in Virginia state law. Under Virginia law, by entering a guilty plea Mr. Rice lost any rights that he would have had under the Actual Innocence Statute if he is later proven not guilty. Even if he were still incarcerated for the crime, Mr. Rice would have no legal recourse if investigators found new biological evidence because he pled guilty to a low level crime, or if investigators found new non-biological evidence because he simple pled at all. If Mr. Rice is proven innocent, he will have spent several years of his life in prison for a crime he did not
50 51

US v. Rice. Deidre Enright, Wrongful Convictions Lecture, April 12, 2007. See also Statement of Mark Corallo, Director of Public Affairs, US Department of Justice, February 6, 2004. 52 US v. Rice. 53 Id.


commit, but would not be eligible for a writ of actual innocence under Virginia law. In order to expunge his arrest and conviction records, he would first need to go through the lengthy process of seeking a pardon or a vacated conviction and then meet the “manifest injustice” standard of the expungement statute. Because Mr. Rice has a criminal record apart from the Shenandoah murder charges, the Court could easily use its discretion to deny his petition by finding that he is already affected by the other part of his record and thereby suffers no additional injustice from the wrongful convictions for murder.

IV. Why Not Expungement? The simple and rather obvious solution to Virginia‟s expungement abyss would be for the General Assembly to amend the expungement and/or pardon statutes to provide for automatic expungement of records in all cases of a wrongful conviction. The legislature has made a partial attempts to find a solution in 2003, 2005 and 2007, but did not succeed in adopting a comprehensive standard (see below). Why not allow automatic expungement of wrongful convictions? Scholars usually cite lack of popular awareness, political pressures on crime control, parity with acquitted defendants and the fear of encouraging law suits against the state.54 A. The Statutes that Were In 2003, the Virginia House considered an amendment that would partially solve the post-exoneration expungement problem with H.R. 1859 Expungement of criminal records; unjust convictions.55 The first part of the bill amended the third category of the expungement statute, absolute pardons. The proposed text compensated inmates with who received an


Huff, C. Ronald, Arye Rattner & Edward Sagarin, Convicted But Innocent: Wrongful Conviction and Public Policy (1996) at 19. 55 H.R. 1859, Gen. Assem. Reg. Sess. (Va. 2003).


absolute pardon or a writ of actual innocence and had been imprisoned for over six months.56 Although this first part of the bill provided further recognition and assistance to the plight of exonerees (including the almost insulting “compensation” of up to seven days free parking at any state park, a $28 value), it did not in any way alter the expungement process. The second part of the bill contained changes that would more substantively affect the expungement procedure, specifically by amending the Powers vested in Governor section of the Executive Clemency statute.57 The proposed text added a new section to the Code called Unjust convictions, which read: In any case in which the Governor shall exercise the power conferred on him to grant an absolute pardon for the commission of a crime for which the individual requesting the pardon has been unjustly convicted and has been confined to a state or local correctional facility for at least 12 months, the Governor or his designee shall also provide to the individual requesting the pardon a letter of exoneration detailing the circumstances of the unjust conviction and expressing the regret of the people of the Commonwealth [emphasis added].58 This amendment, read in conjunction with the first part of the bill, would have allowed an absolute pardon in almost every wrongful conviction case59 and therefore removed the not guilty plea requirement imposed on existing expungement law by the statutory guidelines for a writ of actual innocence. The House first considered the bill on January 8, 2003. 60 That same day, the House referred the Expungement bill to the Committee for Courts of Justice. At the end of that


If the petition is granted on the grounds of subdivision 3 or a writ of actual innocence has been issued pursuant to Chapter 19.2 (§ 19.2-327.2 et seq.) of Title 19.2 and the petitioner has been confined to a state or local correctional facility for at least 6 months, the court shall attach an order entitling the petitioner to (i) waiver of tuition and other mandatory fees for any public institution of higher education in the Commonwealth, (ii) lifetime authorization to enter Virginia's state parks for up to 7 days per year without having to pay an admittance or parking fee, (iii) assessment and guidance services including, but not limited to, aptitude testing, mental health assessment, substance abuse counseling and job placement service, to be provided by the appropriate state agency at no cost, (iv) lifetime membership to the Virginia Museum of Fine Arts, and (v) a transition assistance grant of $15,000. H.R. 1859, Gen. Assem. Reg. Sess. (Va. 2003). 57 H.R. 1859, Gen. Assem. Reg. Sess. (Va. 2003) to amend Va. Code § 53.1-229. 58 H.R. 1859, Gen. Assem. Reg. Sess. (Va. 2003). 59 Note that the bill places a prerequisite that the inmate have served at least one year in prison to receive an absolute pardon. 60 Virginia Legislative Information System on H.R. 1859, Gen. Assem. Reg. Sess. (Va. 2003).


month, the Committee in turn referred the bill to the Criminal Justice Sub-committee who promptly tabled it in a 20-1 vote, where it remains.61 The House next considered legislation regarding expungement in 2005 with the Accused to pay no costs for certain expungements bill. 62 Although the text of the bill would not have substantively changed the expungement law, it remains important because it would have recognized an absolute right to expungement for the wrongfully convicted, regardless of means. In 2005, the Senate also considered legislation regarding expungement, specifically Expungement of police and court records after a specific period of time post-conviction.63 This bill allowed convicts who had had their civil rights restored (for felons, those who had received a pardon) to apply for expungement after remaining a citizen in good standing for 15 years after their release. The bill would have had greater practical effect on “rightfully” convicted persons than exonerees, but again represented a positive acknowledgement of expungment rights. Much like their 2003 predecessors, these bills ended up being tabled by the Criminal Justice SubCommittee.64 The 2007 Police and court records; expungement hearing to occur if person granted writ vacating a conviction law is a step in the right direction, but the problem of post-exoneration expungement demands more comprehensive law.

61 62

Id. “Provides that the petitioner shall incur no costs when an expungement of an accused's criminal record is ordered pursuant to an acquittal or an absolute pardon for the commission of a crime for which the accused was unjustly convicted or when the charge is dismissed with prejudice or the Commonwealth takes a nolle prosequi.” H.R. 1584, Gen. Assem. Reg. Sess. (Va. 2005). 63 “Provides that a convicted person who has had his civil rights restored, including his right to vote, has maintained exemplary citizenship for at least 15 years, has satisfied any and all terms and conditions of probation and parole, and has no other criminal conviction in any jurisdiction may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge.” S.B. 1302, Gen. Assem. Reg. Sess. (Va. 2005).

Virginia Legislative Information System on H.R. 1584, Gen. Assem. Reg. Sess. (Va. 2005).


B. Organizational Wrongdoing Although a little publicized topic, post-exoneration criminal procedure is equally important as the events leading up to a wrongful conviction. “Organizational wrongdoing” is an increasingly studied field that looks at all of the components in a miscarriage of justice. The two principal theories are rational choice and organizational process.65 Rational choice or agency theory is linear, focusing on individual decisions at each state of the criminal process that are motivated by bias or political pressure.66 Under rational choice, the Virginia expungement process is affected by two potential wrongdoers: the governor and the judge, as each has discretion to block the expungement process. The second school of thought supports organizational process or structural theory, which is a complex interaction of decision-makers within larger environment that proceed under a contextual focus toward predicted outcome.67 Post-exoneration expungement law fits in the organizational process model as the intersection or culmination of the defendant‟s plea, the wrongful conviction itself, and the inadequacy of postconviction mechanisms.

V. Conclusion Beyond theoretical wrongdoing and the need for system-wide legal reform, postexoneration expungement is a complex problem that has one simple fix. The Virginia Legislature must eliminate judicial and gubernatorial discretion from the process, and expand the recently-passed law on immediate automatic expungement to all cases of wrongful conviction, whether by new acquittal, pardon, or actual innocence.


William S. Lofqiust, “Whodunit? An examination of the production of wrongful convictions,” Wrongly Convicted: Perspectives on Failed Justice (Saundra D. Westervelt and John A. Humphrey, Eds., 2001) at 174-75. 66 Id. 67 Id.



__________, Wrongly Convicted: Perspectives on Failed Justice (Saundra D. Westervelt and John A. Humphrey, Eds., 2001). Bacigal, Ronald J., Virginia Practice: Criminal Procedure 2007 Edition (2007). Borchard, Edwin M., Convicting the Innocent: Errors of Criminal Justice (1932). Christianson, Scott, Innocent: Inside Wrongful Conviction Cases (2004). Edds, Margaret, An Expendable Man: The Near Execution of Earl Washington Jr. (2003). Enright, Deidre, Wrongful Convictions Lecture April 12, 2007. Hill, Marvin F. and James A. Wright, Employee Lifestyle and Off-Duty Conduct Regulation (1993). Huff, C. Ronald, Arye Rattner & Edward Sagarin, Convicted But Innocent: Wrongful Conviction and Public Policy (1996). Hull, Elizabeth A., The Disenfranchisement of Ex-Felons (2006). The Innocence Commission for Virginia, A Vision for Justice: Report and Recommendations Regarding Wrongful Convictions in the Commonwealth of Virginia (2005). The Innocence Project, Junkin, Tim, Bloodsworth (2004). Life After Exoneration Program, Trechsel, Stefan, Human Rights in Criminal Proceedings (2005).


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