October 4, 2016
On eve of VP debate, a deep dive into "Tim Kaine’s Long, Conflicted History With The Death Penalty"
BuzzFeed News reporter Chris Geidner (who just happens to be one of my favorite former students) did some important yeoman's work recently by looking closely at Democratic VP candidate's long professional engagement with capital punishment. The subheadline of BuzzFeed's lengthy report highlights its themes: "As a lawyer, the Democratic vice presidential nominee took cases defending death-row inmates, arguing that parts of Virginia’s death penalty process made the system 'shockingly unequal.' When he was governor, however, he allowed executions to proceed, even when some of those issues were raised again." I recommend the piece in full, and here is how it gets started:
In 2005, Tim Kaine faced a tight race for governor. He was running against Jerry Kilgore, then the state’s attorney general, and Kilgore was hitting him hard on the death penalty.
Two decades earlier, Kaine had arrived in Virginia a new lawyer who immediately called up the ACLU and asked how he could help. When he was asked to take over a death penalty appeal, he initially turned it down — but then changed his mind, believing that he had to put his principles to work. “The essence of human life is probably suffering and pain,” he would tell the Richmond Times-Dispatch, discussing the death penalty and his Catholicism. “The thing that redeems that is the presence of God in every person.”
Kaine took on representation of Richard Whitley — sentenced to death for a brutal murder in 1980 — and spent more than two years trying, ultimately unsuccessfully, to stop his execution. For Kaine, it wasn’t just about making sure an adversarial system worked properly — he called the death penalty in America “outrageous” in the extensive interview with the Times-Dispatch. Whitley was just the first of a handful of death row inmates that Kaine would try to keep from execution over the course of 15 years, working on behalf of the kind of convicted murderers whose stories do not make for sympathetic coverage.
And, in 2005, Kilgore reminded voters of just that. His campaign produced television ads that featured the family members of people killed in Virginia. In one, the wife of a police officer killed by “a drug dealer illegally in this country” who was on death row, expressed a concern that Kaine would put in place a death penalty moratorium. In another, the father of the man killed by one of the death row inmates who Kaine had represented said that Kaine’s death penalty opposition was so extreme that the would-be governor wouldn’t support the death penalty for Adolf Hitler.
Kaine had made a decision early on in his campaign that the response would be to reiterate his personal opposition to the death penalty, to explain that the position was informed by his Catholic faith, and then to say that he would follow the law and enforce the death penalty as governor. When the attack ads ran, the response ad had already been prepared. The attack didn’t appear to do any damage in the long run, and it may even have turned some voters against Kilgore because the ads were seen as unfair — or even as attacking Kaine’s faith. Kaine ultimately won the race on Election Day, 52%-46%, and took office on Jan. 14, 2006.
Less than three months later, Kaine would be faced with the convergence of two threads in his life — his work as a capital defense lawyer and his promise to enforce the death penalty — when he received a petition seeking executive clemency for Dexter Lee Vinson on April 13, 2006. Vinson was scheduled to be executed two weeks later, and his lawyers, including those from the Virginia Capital Representation Resource Center, held out hope that the new governor would take action to halt the scheduled execution.
In the clemency petition, obtained by BuzzFeed News, the lawyers wrote, “If this execution is carried out as scheduled, troubling questions about whether Vinson is innocent of the crimes for which he will be put to death will remain unresolved.” Specifically, the lawyers wrote, “The unique combination of newly discovered evidence, undeveloped evidence, and singular circumstances of Vinson’s case rattle the confidence the Commonwealth must have before taking an irremediable action like execution.”
Kaine denied clemency to Vinson and his execution took place on April 27, 2006, the first of 11 executions that took place under Kaine’s governorship. In that time, Kaine only commuted one death sentence, that of Percy Walton, who faced the death penalty for three murders. In 2008, Kaine concluded Walton was not mentally competent to face execution and commuted his sentence to life in prison.
“What I told Virginians was, ‘I’m against the death penalty, but I’ll uphold the law,’ and I did that,” Kaine said this June in a C-SPAN interview about his life and career. Of considering, and ultimately rejecting, most of the clemency petitions that came before him, he said, “Very, very difficult — the hardest thing in public life I’ve had to do was that. … I grappled with the cases, but only gave relief to people who I felt had made a case that they were entitled to clemency.”
Over the course of the past three decades, Tim Kaine’s experience with the death penalty is far more complex and nuanced than that of any other major party candidate for the presidency or vice presidency in the modern era of the death penalty. Kaine has represented multiple people on death row, seeking to highlight what he has described as a “shockingly unequal” system, and he also has governed one of the few states that has continued to carry out executions regularly over the past decade.
The questions Kaine raised as a defense lawyer were mostly related to process — from the time given for federal court review of cases and the rules that Virginia state courts had for review of capital cases to the quality of the lawyers provided to criminal defendants in those cases and the way those lawyers carried out that defense — but that process, as Kaine said at the time, is sometimes the difference between life and death. “If you had enough money to pay” for a top-tier criminal defense attorney at trial, he said at the time of Whitley’s execution, “you’re not going to get the death penalty.”
And yet, a decade later, in his four years as governor, Kaine found himself in the position of denying clemency requests in cases where those and other similar issues were being raised by people facing execution under his watch.
October 4, 2016 at 08:56 AM | Permalink
Different roles factor in here. See also, advocate Frankfurter v. Justice Frankfurter.
Posted by: Joe | Oct 4, 2016 10:09:05 AM
Remember how I remarked the Governor of NM was using the DP as a wedge issue? Now we know why....
More than 2/3 of the state's residents support bringing back the DP.
Posted by: Daniel | Oct 4, 2016 10:31:28 AM