The death penalty in Virginia
By HENRY HELLER of Charlottesville
Executive director of Virginians for Alternatives to the Death Penalty
Printed in The (Fredericksburg) Free-Lance Star, May 24, 1999
Hear ye, hear ye, Virginia ... The death penalty is alive and well in our beloved commonwealth. With 8 men already executed in the 1st 5 months of the year, we will surely break last years record of 13. After all, we broke the 1997 record of 9, and that was after breaking the 1996 record of 8.
We are in sole possession of 2nd place (though well behind "Don't Mess with Texas") in the numbers weve executed since 1976. In that year, the U.S. Supreme Court lifted its moratorium on the death penalty. Last year we overtook Texas and became No. 1 in the rate of executions with states that have populations of more than one million.
And here's one more statistic I bet you didn't know: Virginia's death row, which a few years ago hovered around 50, is now down to 39-34 state prisoners and 5 federal. That leaves 20 other states that have death-row populations exceeding ours.
12 of those have populations of between 100 and 520.
While Virginia's execution machine is the most efficient in the country, it is also the most repressive when it comes to death-row cases being overturned. While the national average is around 40 %, Virginia courts have overturned 6 % of such cases. Government officials would like us to believe that the reason is that our system doesnt dillydally around with endless appeals.
The attorney general's office, which makes sure that death-penalty cases are streamlined through the system, claims that Virginia's death penalty is the most fair, balanced, and carefully implemented system in the country. The office also claims there are safeguards to keep innocent people from being executed.
But at least one local lawyer's organization believes otherwise. The Charlottesville-Albemarle Bar Association recently passed a unanimous resolution calling for a moratorium on the death penalty, because members didn't buy into what the attorney general's office wants us to believe. More local bar associations are sure to follow. This is a trend that is being seen nationwide.
Let's first look at the issue of fairness. A couple of years ago when a former Virginia attorney general agreed to represent a death-row prisoner in his appeals, he researched 32 cases between 1985-96 in which the defendants were convicted of similar capital crimes. In 18 of those cases, the defendant got a death sentence, while in 14 cases he received life imprisonment. The former attorney general's conclusion: Imposition of the death penalty is arbitrary. Cases where the crime was more vile and heinous resulted in life sentences. Further, you don't see anyone other than poor people on death row.
The 4th District Circuit Court of Appeals has never overturned a Virginia death-penalty decision. After all, the court's concern is whether the trial went according to procedure - not whether evidence was withheld from the defense or whether the defense attorney had never tried a capital case. Appeals courts are not even required to consider any new evidence of innocence presented later than 21 days after sentencing. Imagine a justice system that isn't required to hear a condemned man's claims of evidence of innocence.
The bad news is our legislators have had a chance to correct this barbaric law, but chose not to. The good news is that a bill to remedy this unfair situation lost by only a narrow margin. Many legislators caved in to the myth that if new evidence of innocence is allowed, it would mean the end of the death penalty. They claim that the governor can grant clemency if the doomed guy is really innocent.
But in this day and age of politicians vying for who can appear tougher on crime, does anyone honestly believe that a governor will look at the actual facts of the case? After all, Gov. Gilmore has had ample chances to grant clemency but has refused in 21 out of the 22 cases before him. (Gov. Gilmore recently commuted his 1st death sentence, imposed on a severely mentally impaired man - but only after the local prosecutor assured him he would not have sought a death decree if he had known the perpetrator was mentally deficient.) But why would anyone be surprised at this? Gov. Gilmore spent 4 years as Attorney General Gilmore doing his best to see that anyone who made it to death row made it to the gurney.
Proponents of the death penalty claim that it's the appeals process that prevents the death penalty from being a deterrent. Not only has the appeals process been shortened to the point that we are beginning to see men executed after 3 or 4 years; it is worthless in Virginia. While the 21-day rule prevents courts from considering new evidence of innocence, the contemporaneous-objection rule prevents an appeals attorney from raising any objections that the trial attorney failed to raise at the trial. If these laws stand, innocent people will continue to be executed in Virginia.
Since 1991, Virginia governors have indeed granted clemency to 4 men as they were preparing to be executed because of their substantial claims of innocence. Yet these men will most likely die in prison because the governors lacked authority to grant them a new trial, and the attorney general refused to give them one. Why are these men in prison if they might not have committed a crime? That's justice, Virginia style!
Some claim that we execute certain murderers for the victims families.
Indeed, it is the victims families who are most manipulated by prosecutors into believing that they are going to feel better when the perpetrator is sentenced to death, and really get better when the killer is executed. The fact is, in the words of a man who lost his 16-year-old son to a senseless murder, "victims' families never get over the loss of their loved ones. We have to deal with it for the rest of our lives. Taking another life cannot bring back my son. It only creates more victims' families."
In point of fact, a vast majority of Virginians support the death penalty - unless they are given an alternative. 6 consecutive years of independent polling at Virginia Tech show that support for the death penalty falls by half when Virginians are given the alternative of life imprisonment with no possibility of parole for a minimum of 25 years - combined with restitution to the victims family.
Our legislators were elected to represent the views of their constituents. Are they?