- Virginia abolished parole in 1995.
- Virginia has mandatory LWOP and JLWOP. See Va. Code Ann. § 18.2-10 (2012).
- Juveniles may be transferred to criminal court at age 14.
Va. Const. Art. I, § 9 (2012): Prohibition of excessive bail and fines, cruel and unusual punishment, suspension of habeas corpus, bills of attainder, and ex post facto laws
That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of invasion or rebellion, the public safety may require; and that the General Assembly shall not pass any bill of attainder, or any ex post facto law.
NOTE: Article I, Section 9 is interpreted as the equivalent of the Eighth Amendment.
- Sentencing Guidelines System –
Virginia’s Sentencing Guidelines are advisory in nature. Nevertheless, a sentencing worksheet must be completed and deviations from the recommended guidelines sentences should be explained in writing. Departure is not grounds for appeal. See www.vcsc.virginia.gov.
- Proportionality Review for Death Sentences – Va. Code Ann. § 17.1-313(C)(2)
Virginia courts are statutorily required to review capital cases for proportionality. See Va. Code Ann. § 17.1-313(C)(2). The goal of this review is not to ensure “complete symmetry,” but rather to identify an “aberrant death sentence.” Gray v. Commonwealth, 274 Va. 290, 303 (Va. 2007) (quoting Muhammad v. Commonwealth, 269 Va. at 451, 532 (2005).
- Habitual Offender Statutes – Va. Code Ann. § 19.2-297.1 (2012)
- § 19.2-297.1. Sentence of person twice previously convicted of certain violent felonies
An issue may not be heard for the first time on appeal. Singson v. Commonwealth, 46 Va. App. 724, 748-749 (Va. Ct. App. 2005). In order to preserve an issue for appeal, a contemporaneous objection must be made in the trial court. The objection must be both timely and specific so that the trial judge may address the objection. Singson v. Commonwealth, 46 Va. App. 724, 748-749 (Va. Ct. App. 2005) (citing Thomas v. Commonwealth, 44 Va. App. 741, 750 (2005)). See also West v. Commonwealth, 43 Va. App. 327, 337 (2004).
State Constitution & Proportionality
Traditionally, Virginia courts have deferred to the legislature regarding the length of a prison sentence. Dunaway v. Commonwealth, 52 Va. App. 281, 311 (Va. Ct. App. 2008) (citing citing Hart v. Commonwealth, 131 Va. 726, 741-42, 109 S.E. 582, 586-87 (Va. 1921)).
The Eighth Amendment to the United States Constitution is modeled on and congruent to Article I, Section 9 of the Constitution of Virginia. Department of Prof'l & Occupational Regulation v. Abateco Servs., 33 Va. App. 473, 481 (Va. Ct. App. 2000); See also Dunaway v. Commonwealth, 52 Va. App. 281, 310-313 (Va. Ct. App. 2008).
Article I, Section 9 of the Constitution of Virginia, as well as its federal equivalent, stands for the principle that “the punishment should not be disproportionate to the crime. Department of Prof'l & Occupational Regulation v. Abateco Servs., 33 Va. App. 473, 481-482 (Va. Ct. App. 2000).
“No punishment authorized by statute, even though severe, is cruel and unusual unless it is one ‘prescribing a punishment in quantum so severe for a comparatively trivial offense that it would be so out of proportion to the crime as to shock the conscience . . . .’” DePriest v. Commonwealth, 33 Va. App. 754, 764 (Va. Ct. App. 2000) (quoting Hart v. Commonwealth, 131 Va. 726, 745 (Va. 1921)).
To determine the proportionality of a punishment under Article I, Section 9 of the Constitution of Virginia, Virginia courts have adopted an analysis similar to the Supreme Court’s “gross disproportionality” standard. Department of Prof'l & Occupational Regulation v. Abateco Servs., 33 Va. App. 473, 482-483 (Va. Ct. App. 2000); Dunaway v. Commonwealth, 52 Va. App. 281, 311-12 (Va. Ct. App. 2008).
Mandatory sentences are not per se cruel and unusual punishment under the Constitution of Virginia. See Dunaway v. Commonwealth, 52 Va. App. 281, 311-313 (Va. Ct. App. 2008).
Execution by electrocution does not violate Article I, Section 9 of the Constitution of Virginia. Orbe v. Johnson, 267 Va. 560, 562 (Va. 2004).
Leading Court Discussions of Graham and Miller
Angel v. Com., 281 Va. 248, 704 S.E.2d 386 (January 13, 2011) (statute that provides conditional release of prisoners who have reached a certain age and served a certain length of imprisonment affords “meaningful opportunity” and does not violates Graham)
A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
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Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.