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October 3, 2010

Reviewing the administration of the death penalty in Virginia

The Richmond Times Dispatch has this new legnthy article, headlined "Many factors figure in death-penalty cases," concerning the administration of the death penalty in Virgina.  Especially because Virginia reasonably can and likely would claim to have the most sound and sensible capital punishment system in the United States, the piece is an interesting read including some interesting (somewhat dated) Virginia statistics.  Here are some excerpts:

A smiling Sam McCroskey was led from Prince Edward County Circuit Court last month after a plea deal won for him a life sentence instead of execution for bludgeoning four people to death -- three while they slept.  Three days later, Teresa Lewis, a Pittsylvania County grandmother, was executed by injection for a double murder-for-hire in which she did not pull the trigger.

The different outcomes were the latest to confound and upset Virginians who support or oppose the death penalty.  Experts say many factors, not all of them apparent, figure in death cases, including the sentiments of jurors in the 120 jurisdictions that elect commonwealth's attorneys, the wishes of the victims' families, the strength of evidence, and the abilities of the prosecutor and defense lawyers.

From the initial decision by a prosecutor to seek the ultimate sanction to the 11th-hour call by a governor on whether to intervene, discretion plays a huge role. "As long as there's a human factor in the decision-making, there's going to be disparity," said Craig S. Cooley, an area criminal defense lawyer who has worked on 68 capital-murder cases.

The way Warren Von Schuch, a special prosecutor in Chesterfield County, sees it, "you have to start with a prosecutor acting in good faith and from there, there are just a myriad of variables that affect the ultimate outcome."...

Local commonwealth's attorneys decide whether to seek the death penalty. Some do so more often than others. In addition to the seriousness of the crime, prosecutors, who are elected officials, can take into account their availability of resources, their own philosophy, and what they view as the moral sense of their constituents.

To win a death sentence, the state must do more than prove guilt.  Prosecutors must show that killers are future dangers because they had committed other violent acts, or that the capital crime was so vile that the defendant deserves execution, or both....

Further complicating capital cases is the plea-bargaining process, often used when there is more than one defendant, and possible appeals in state and federal courts that could result in the death penalty being thrown out. "Small wonder, when you think about all those different turns in the road, that there's no appearance of symmetry. . . . You're going to get differences of outcomes that may turn on the jury, on the judge or on the prosecutor," said A.E. Dick Howard, a University of Virginia law professor and constitutional scholar....

Even geography is a factor. A capital murder on one side of a county or city line can result in a death sentence and, on the other, life in prison.

In 2001, the General Assembly's Joint Legislative Audit and Review Commission studied 215 capital punishment-eligible cases in Virginia from 1995 to 1999. In that study, suburban prosecutors sought the death penalty in 45 percent of the cases, while city prosecutors sought execution in 16 percent. In rural areas, the death penalty was sought in 34 percent of the cases.

Howard said it is not surprising that in a federal system of government, some states have the death penalty and some do not. "But it comes as a little more of a jolt when you find that statistically, the prosecuting decision to ask for the death penalty varies quite substantially from one county or one city from another within a state," he said....

Richard J. Bonnie, director of the Institute of Law, Psychiatry and Public Policy at U.Va., said the differences in outcomes in capital-murder cases poses a larger question for death-penalty states.  In Virginia, for example, there are roughly 300 to 400 murders a year.  No figures are available on how many are potential death-penalty cases.

But Bonnie said if it's presumed for discussion purposes that roughly one-third would be eligible for the death penalty, in recent years "out of that hundred cases there have only been one or two death sentences." Because there are so few, he said, "there is no reasonable confidence that you can have that the people who receive death sentences and who are executed are in any sort of rational way, different from the many people that did not."

October 3, 2010 at 10:49 AM | Permalink


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Any system, like ours, that permits irrational leniency will have results like this. The question is whether we would prefer the alternative, i.e., a system that does NOT allow irrational leniency.

Or, to put it another way, given that some people who deserve the DP get off, is the answer that we should let EVERYONE who deserves it get off? To me, the answer is obvious. Some justice is better than none.

Posted by: Bill Otis | Oct 3, 2010 2:31:26 PM


Posted by: John Neff | Oct 3, 2010 5:27:23 PM

This idea that somehow capital murderers are entitled to some sort of cosmic fairness as between them is about as dumb as one can get.

Posted by: federalist | Oct 4, 2010 3:11:24 PM

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