“21-day rule” may be modified to ease legal challenges falsely convicted inmates face

In the aftermath of Johnathan Montgomery’s case, a man falsely accused and wrongly charged of a crime he did not commit, Virginia legislators may seek to “relax” the cumbersome legal challenges that falsely convicted inmates seeking exoneration face in the state of Virginia.[1]

Virginia’s “21-day rule” says that only an appellate court can consider new evidence of innocence presented three weeks after sentencing.

In the case of Johnathan Montgomery, 4 of his 7.5 year sentence for a sexual assault conviction had already been served when his accuser admitted she lied. After a circuit court judge ordered Montgomery’s release, Virginia Attorney General Ken Cuccinelli held up the release, arguing the circuit court judge lacked authority to exonerate Montgomery under the 21-day rule.

Cuccinelli stated that Montgomery would have to file for a “writ of actual innocence” from the Virginia Court of Appeals OR ask Virginia’s governor for exoneration, both ridiculous examples of bureaucratic/legal overkill.

Of course, Cuccinelli was upholding the law of Virginia when he made his decision to stall Montgomery’s release, but it is clear that Virginia’s “21-day rule” must be modified. According to the executive director of the Mid-Atlantic Innocence Project, Shawn Ambrust, “One thing we may advocate is a way of getting someone out of prison when everyone agrees he should get out.”[2] Indeed, this would be a good cause to advocate for!

Adding to the need to modify the 21-day rule are the relatively easy fixes that could be applied to ease the legal challenges faced by falsely convicted inmates seeking exoneration.

For instance, the attorney general could be allowed to provide evidence of an inmate’s innocence. Another solution would consist of a single word change in the current statute, from “could” to “would.” Even in our polarized political environment, a legislative change like this can be made.

If laws are made to protect the innocent and prosecute the guilty then it stands to reason why the 21-day rule should not be immediately changed. Not only is it the right thing to do for the individual and society, it seems like a uniquely easy problem to solve.

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[1] http://www.timesdispatch.com/news/state-regional/ap/va-lawmakers-likely-to-examine-innocence-law/article_2211e1e7-b6d5-51cd-8fdf-a241c10e7e59.html

[2] http://www.timesdispatch.com/news/state-regional/ap/va-lawmakers-likely-to-examine-innocence-law/article_2211e1e7-b6d5-51cd-8fdf-a241c10e7e59.html