Could the Death Penalty Die in Virginia?
Sarah E. Torian
Opportunities for Activism
Vol. 23, No. 1, 2001 pp. 15-16
Say the words "death penalty" these days and many people will automatically think of Texas. As then-Governor George W. Bush ran for President last year, the state's death penalty system and its record-setting 154 executions in the five years under Bush received a great deal of media attention. Many people would be surprised to learn, however, that, when state population is taken into consideration, the state of Virginia leads the nation in the rate of executions. Not only does Virginia, with eighty-two executions since it reinstated the death penalty in 1977, execute its citizens at a higher rate than any other state, but it also has the most limiting appeals process of any state. As Columbia law professor James Liebman explains, "When it comes to getting and keeping death sentences, the planets are just really aligned over Virginia."
But, even in Virginia, growing public doubt of the infallibility and effectiveness of the death penalty system is beginning to show. The 2001 state legislative session marked a clear shift in the attitude of legislators regarding death penalty policies. "There was a dramatic difference this year," says Kent Willis, executive director of the Virginia ACLU which released a report on the injustices of the state's capital punishment system in April 2000. In the past five years there were proposals to add twenty-six additional capital offenses to the state law books--nine of which passed. The 2001 legislative session marked a significant change from that death penalty expansionism. In addition to a proposal to abolish the state's death penalty system completely, there were four proposals to place a moratorium on executions, and six proposals to ease the appeals and defense process for accused people--including a bill to cover DNA testing for anyone who has a life sentence. That bill was co-sponsored by ninety-six of one hundred delegates and thirty-six of forty senators. "For years, death penalty opponents have had to fight to prevent further expansion of the death penalty," explains Willis. "This year, the legislators moved from expansion to moratorium!"
This new attitude is apparent on both sides of the aisle. Delegate Frank Hargrove (Hanover County), the one legislator to propose abolition of the death penalty in Virginia, is a nine-term conservative Republican. Earlier in his career, he responded to the argument that the death penalty is a deterrence to murder by proposing a bill to have death sentences carried out on public gallows in downtown Richmond. Several other conservative Republicans--Harvey Morgan (Gloucester), Jeannemarie Devolites (Vienna), and Vincent Callahan, Jr. (McLean)--were among the thirteen legislators to co-sponsor moratorium legislation.
The death penalty has always been a very partisan issue with only a small progressive faction of Democrats opposing it, so this growing Republican opposition is striking--if somewhat difficult to explain. "The cynical side of me would say these politicians who have come out against the death penalty this year, have done so for political reasons," speculates Willis, adding, "It was finally politically acceptable to oppose it." Henry Heller, executive director of Virginians for Alternatives to the Death Penalty (VADP), agrees, saying, "Republicans have less to lose from appearing 'soft on crime.' Democrats are stigmatized by public perceptions that they are 'too liberal.'"
This fading public support for state-sanctioned murder is evident in polling data. On November 6, 2000, the Richmond Times-Dispatch released the results of a statewide poll, revealing that 58 percent of Virginians supported a moratorium on the death penalty. Many organizations are also joining the fight against the death penalty in Virginia. Eight newspapers, including Norfolk's Virginian Pilot and the Roanoke Times, have signed a petition calling for a moratorium. Thirty-eight religious groups, including the Alliance of Baptists and the Episcopal Diocese of Virginia have also signed. Fifteen legal and activist organizations, including the Virginia College of Criminal Defense Attorneys, the ACLU and NAACP of Virginia, have also endorsed the petition. "There has been an infinite change in attitude across the state recently. On the death penalty in Virginia, the public is ahead of the legislature," reports Bruce Williamson, President of VADP and expert witness to the Virginia General Assembly. Even Buddy Fowler, a supporter of the death penalty and assistant to Delegate Hargrove, has noted the number of conservative opponents to the death penalty. "Reactions [to Hargrove's abolition bill] have ranged from disappointment, to anger, to appreciation," he reports. "Actually, a lot of conservatives have called to say that they have thought this way for a long time."
The Assembly's Joint Legislative Audit and Review
Page 16Commission (JLARC), chaired by Delegate Callahan, has commissioned a study of the state's death penalty system, concentrating on prosecutorial discretion--which cases involving capital crimes are tried as capital cases-and the appeals process. Completion of the study is expected in December 2001. Wayne Turnage, the study team leader, is currently constructing an index of factors by which to evaluate all cases involving capital crimes between 1995 and 1999. Included in that index will be the following :
- Was there any forensic evidence linking the accused to the crime?;
- Were there any eyewitnesses and, if so, were they culpable or connected to the victim or the accused?;
- What was the race of the accused and the victim?;
- What was the sex of the accused and the victim?;
- What was the age of the accused and the victim?;
- Was the victim culpable or involved in a crime?; and
- What was the financial status of the accused? (based on whether or not the accused was represented by a public defender).
"I think people on both sides of this debate will be disappointed," suggests Turnage who claims to flip-flop in his personal opinions of the death penalty. "If this study were done fifteen to twenty years ago, I could predict that it would reveal many systematic flaws, but being conducted now, I think many people will be surprised." He cites race as one of the categories that will surprise many when the report is released since, due to the state's demographics, the majority of capital crimes involving African Americans are in the more urban areas of the state where the rate of capital prosecution is much lower than rural areas. (Currently there are sixteen African americans, fifteen whites, and one foreign citizen on Virginia's death row.)
Even after meeting with Turnage and the other two researchers conducting the study, Williamson remains hopeful that the report will support alternatives to the death penalty. "They were very open and receptive to our input. The death penalty in Virginia has so many flaws and inequities that if they take a fair and objective study of it, the report will be great ammunition to pass moratorium or abolition legislation next year."
In January 2001, Earl Washington, Jr. was released from Virginia's death row jail after spending nine and a half years on death row. Washington came within nine days of execution in 1993 before then-Governor Douglas Wilder commuted his sentence to life in prison based on the results of DNA tests that cast doubt on his guilt. With advances in technology since then, DNA evidence analyzed using new tests in 2000 proved that Washington, who is mentally retarded, could not be guilty of the 1982 rape and murder that nearly cost him his life.
"In one word-DNA," says Delegate Callahan, a former advocate of the death penalty, when asked to explain his role in opposing the death penalty. "It has become obvious that people slip through the cracks. Innocent people can be executed. We don't have any proof that innocent people have been executed, but the risk is too great." Fowler explains that Delegate Hargrove, who served on a claims commission for the reimbursement of a person wrongly charged and convicted of murder, has similar reasons for opposing the death penalty, adding, "Now that Virginia has life without parole as a sentencing option, a person can be put away for the rest of their natural life. Hargrove believes that serves the public safety function that the death penalty previously addressed without risking the execution of an innocent person."
Ultimately, despite all of the increased negative attention and legislative action against the death penalty during the 2000 session, very little was accomplished. The abolition bill and all moratorium bills died in the Courts of Justice committees, the House and Senate committees that review all bills relating to laws and legal matters. HB 1366, which allows for the admission of biological/DNA evidence that will prove innocence by anyone convicted of life imprisonment or the death penalty at any time, was the only true success of the 2001 session-and it's success is limited at best. Under the HB 1366, any evidence other than biological-including the recantation of testimony by eyewitnesses or the confession of another person-continues to be inadmissible in the appeals process, insuring that innocent people will remain defenseless on death row. Of the eighty people exonerated from death row across the nation, only ten were exonerated based on DNA evidence.
Nevertheless, this growing opposition to the death penalty, among legislators and the public, and the expected release of the JLARC report in December, opens the door for grassroots organizing in support of alternatives to the death penalty. "Virginians want an alternative to the death penalty," says Heller. "We are just trying to make the legislators realize that." Callahan feels that progress will come slowly, saying, "I remain hopeful that the laws in Virginia will be changed. These things take time; sadly, the legislature often moves at a snails pace."
For more information about how you can get involved in the fight for alternatives to the death penalty in Virginia or to add your group to the list calling for a moratorium, visit the VADP website at: www.vadp.org or call 804-263-8148.
Sarah E. Torian is associate editor of Southern Changes and a communications coordinator at the Southern Regional Council.