The ACLU is asking its members and other groups seeking reform of Virginia’s criminal justice system to encourage voters to support Constitutional Amendment #1, which will appear on the ballot on November 5. If adopted, Amendment #1 would enable the Virginia Supreme Court to review convictions where DNA-type evidence suggests a likelihood of innocence.
The wording of the referendum question as it will appear on the ballot is as follows:  "Shall the Constitution of Virginia be amended to permit the Supreme Court to consider, as part of its original jurisdiction, claims of actual innocence presented by convicted felons in the cases and manner provided by the General Assembly?"
In 2001, the Virginia General Assembly, in a unanimous vote of both the House of Delegates and the Senate, supported the new amendment to the Virginia Constitution. The amendment partially fixes Virginia’s notorious “21-day rule,” which prevents courts from reviewing new evidence of innocence in criminal cases that surfaces more than three weeks after the trial.
Currently in Virginia when such evidence is discovered, the only option for review of the case in question is the Governor.
Although the proposed amendment only allows the court to review biological evidence that can be subjected to DNA testing -- and does not address recantations, new witnesses or other kinds of evidence that may shed doubt on a convicted person’s guilt -- it is a significant development that will make it less likely that an innocent person will be executed in Virginia.
The ACLU will continue to press Virginia’s legislators to eliminate the 21-day rule altogether, so that any legitimate claim of innocence based on new evidence may be reviewed by the court system.
“Casting a vote in favor of Amendment #1 is a step in the right direction for criminal justice reform in Virginia,” said ACLU of Virginia executive director Kent Willis. “But it should be viewed as the beginning of that process, not the end. In most instances, it is non-biological evidence that is used to prove someone’s innocence after they have been found guilty in court.”
The enclosed fact sheet answers five important questions about Constitutional Amendment #1.

Contact: Kent Willis, Executive Director, ACLU of Virginia, (804) 644-8022