Fail-Safes for Virginia Death Penalty

As former attorneys general of Virginia, we come from different political parties but are firmly united on an issue important to all Virginians: If the commonwealth is going to have the death penalty, it needs to get it right. It must ensure that its procedures — from arrest to execution — are fair, and it must minimize the risk of executing an innocent person.

We now have extensive evidence documenting the need for modest but vitally important changes to Virginia’s death penalty process. A team of Virginia legal experts, assembled by the American Bar Association, recently released a 400-page report detailing the challenges faced by the commonwealth in ensuring fairness and accuracy in death penalty cases. The team, which includes three former or current prosecutors, a former circuit court judge and two capital defense lawyers — identified a number of ways in which Virginia’s death penalty is out of step with modern forensic and social sciences and areas where the commonwealth’s practices are out of step with those of other states.

Unlike many reviews of capital punishment in the United States, this group’s charge was not to determine whether the commonwealth should have a death penalty. Instead, its operating position was that as long as Virginia has a death penalty, it must be reserved for a narrow category of the worst offenders and offenses, ensure heightened due process and minimize the risk of executing the innocent. We could not agree more.

The report sets out a sober, detailed explanation of the system’s shortcomings. Virginia has one of the most restrictive laws governing discovery of evidence in criminal trials — including death penalty cases. Discovery rules governing automobile accident cases in the commonwealth offer far more information than those for a defendant facing capital punishment. Such a system not only fails the fairness test but also makes extensive post-trial litigation, reversals and retrials much more likely. Indeed, two people convicted of capital murder more than a decade ago in Virginia — Michael Hash and Justin Wolfe — recently had their convictions reversed by federal courts because of withheld evidence.

The research team also found that many jurors who have served on capital cases in the state misunderstood the instructions provided to them in deliberating on whether a defendant should be sentenced to death. An alarming 53 percent of surveyed jurors believed the death penalty was required if they found that the murder was heinous, vile or depraved, and 41 percent believed that death was required if they thought the defendant would be dangerous in the future. As a matter of law, however, the death penalty can never be mandatory. Virginia’s capital jury instructions must be amended to ensure that jurors understand their roles and responsibilities in undertaking the awesome responsibility of determining whether another person should live or die.

The team also found that Virginia erects one of the highest burdens in the country to obtaining post-conviction DNA testing and imposes significant limitations on courts’ ability to review claims of error. These restrictions emphasize finality over fairness — an improper balance when we also know that more than 30 people have been exonerated in Virginia since 1989, including three cases in which the commonwealth sought the death penalty.

The report also recognizes progress that has been made. Over the past decade, Virginia has implemented a public defender system that employs lawyers who specialize in death penalty cases to represent capital defendants. Since the guiding hand of skilled counsel can dramatically improve the fairness of death penalty proceedings, this is a tremendous step in the right direction. In addition, the commonwealth has attracted some of the best forensic scientists in the country. The impartiality and reliability of Virginia’s forensic scientists are vitally important when life and liberty are at risk.

These positive factors should not shield the numerous other areas of concern from review, discussion and reform. The team’s report has been delivered to state leaders. We encourage them to act immediately to protect the integrity of our system, particularly when lives are at stake.

Mark L. Earley Sr., a Republican, was Virginia’s attorney general from 1997 to 2001. He served on the ABA’s Virginia Death Penalty Assessment Team. Anthony F. Troy, a Democrat, was Virginia’s attorney general from 1977 to 1978 and is a former chairman of the Virginia Capital Resource Representation Center.

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