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March 2, 2016

Are death penalty advocates troubled by plea deal, presumably urged by families of two slain Viriginia college students, that allows a double murderer to escape any real punishment?

The question in the title of this post is my reaction to this news story about an expected plea deal which seem to allow a high-profile double-murderer in Virginia to, in essence, avoid suffering any real punishment for murdering two college students.  The article is headlined "Report: Matthew to be spared death penalty in Va. student murders," and here are the details (with my emphasis added):

Two remarkably similar murder cases that amplified concerns about campus safety are expected to end when a Virginia man enters a plea deal that will spare him a possible death sentence. Jesse LeRoy Matthew Jr., 34, is expected to enter pleas resolving the Hannah Graham and Morgan Harrington cases Wednesday, according to Albemarle County Commonwealth's Attorney Robert N. Tracci. The prosecutor did not disclose the terms of the plea agreement ahead of the hearing.

Sources told CBS affiliate WTVR Matthew is expected to plead guilty to first-degree murder and intent to defile in both cases.  WTVR reporter Laura French reports via Twitter that Matthew is expected to serve four life sentences with no eligibility for parole. The deal will spare him the death penalty, sources told the station.

The former hospital orderly and cab driver is charged with capital murder in the September 2014 death of 18-year-old University of Virginia student Graham. He also faces a first-degree murder charge in the 2009 death of Harrington, a 20-year-old Virginia Tech student.  He already is serving three life prison terms for a sexual assault in northern Virginia.

According to authorities, Graham and Harrington were young women in vulnerable straits when they vanished in Charlottesville five years apart...

Graham's disappearance, which came at a time of rising national concern about sexual assaults and other crimes on college campuses, prompted a massive search.  Her body was found five weeks later on abandoned property in Albemarle County, about 12 miles from the Charlottesville campus and 6 miles from a hayfield where Harrington's remains had been found in January 2010.

After police named Matthew a person of interest in Graham's disappearance, he fled and was later apprehended on a beach in southeast Texas.  He was charged with abduction with intent to defile, a felony that empowered police to swab his cheek for a DNA sample.  That sample connected Matthew to the 2005 sexual assault in Fairfax, a Virginia suburb of Washington, according to authorities.  The DNA evidence in the Fairfax sexual assault, in turn, linked Matthew to the Harrington case, authorities have said.

The charge against Matthew in the Graham case was later upgraded to capital murder, giving prosecutors the option to seek the death penalty.

Both the Harrington and the Graham families are supportive of the deal, WTVR reports.  Both families requested to give victim impact statements at the Wednesday afternoon hearing.

When I first saw the headline of this local story, I was puzzled by the willingness of Virginia prosecutors to let a defendant who is already serving multiple life sentences for other crimes now avoid any capital prosecution for two horrific murders. But, after reading that "the Harrington and the Graham families are supportive of the deal," I presume that these families strongly urged the prosecutors to take this kind of deal in order to conclude legal proceedings quickly and to allow them to get a measure of closure.

Assuming I am right that this plea deal is at the behest of the families of the victims, I am genuinely interested to hear from death penalty advocates about whether they think this outcome is ultimately a serious injustice. I surmise that some (many? most?) death penalty advocates think it is an injustice anytime a first-degree murderer escapes a capital prosecution and possible execution. In this case, given that the double-murderer is already serving life sentences for other crimes, this plea deal to additional life sentences means, functionally, Matthew is going to receive no real punishment at all for murdering Graham and Harrington.

Because I am a something of a death penalty agnostic, and especially because I am a strong supporter of taking very seriously the sentencing interests of crime victims in all cases, I really am not sure how I feel about this outcome.  But I am sure I would like to hear the opinions of others, especially those who genuinely believe, as did Immanuel Kant, that the "satisfaction of justice" demands the execution of certain killers.

March 2, 2016 at 05:27 PM | Permalink


I assume that these murders were committed before he went to prison on the three life terms. Is that correct? I.e. he did not escape and then go out and commit more crimes?

If it is the case that he can successfully be contained and prevented from committing any further harm, then I don't know what extra "justice" would be gained from killing him.

Posted by: Kirsten Tynan | Mar 2, 2016 5:34:34 PM

"he can successfully be contained and prevented from committing any further harm"

People kill in prison.

The family of victims have opposed the death penalty in the past and the state has prosecuted and obtained a capital sentence and in some cases executed. So, the wishes of the victims (who repeatedly are split -- my family would be if one of our own were murdered and the question arose) have been ignored in the past.

We don't live in a nation like IIRC Iran (or some Middle Eastern nation) where it was up to the victim's family to determine if the person dies. It is of course generally a good idea to get the victim's family on your side. Not always possible or apparently in the eyes of some (if they chose unwisely) good public policy.

As to why, the article notes a plea deal. Also, it looks like the other terms didn't have the "no eligibility for parole" tag.

Posted by: Joe | Mar 2, 2016 6:01:34 PM


I am willing to take the proffered bait notwithstanding my complete and utter lack of knowledge of Virginia criminal law and procedure.

First, I would note that it is my understanding that the defendant was eligible for release at 60 under Virginia law for his three life terms. A plea to life without the possibility of parole (to the extent that is still in existence during Graham's lifetime) would appear to qualify as a greater punishment.

Second, if in fact the plea was driven by the desire of the families of the two victims, that is certainly a powerful reason to make this deal. Putting the next-of-kin of a murder victim through the ordeal of a trial is difficult enough, but it would be hugely amplified if they disagreed with a decision to seek the death penalty.

Third, we do not know the state of the evidence of these two cases. In my opinion, it would take an exceptional set of circumstances where I would seek death in a case where I was not absolutely certain of the defendant's guilt.

That all being said, I would respectfully disagree with any decision to plea bargain the death penalty. Plea bargaining is a necessary evil that should never be considered in death penalty cases. Either the case/criminal deserves death or does not. If the Commonwealth's prosecutor felt the case merited the death penalty, then "no power on earth should deter him/her from presenting these facts to the jury".

Posted by: Cal prosecutor | Mar 2, 2016 6:03:50 PM

Thanks for the quick comments, Cal and others. I was unsure if the other life terms in Virginia included eligibility for some kind of release, and certainly the elimination of that possibility serves as some formal extra punishment (although, assuming limited doubt about guilt on at least one of these murderers, actual release seems a long-shot on these facts).

As for uncertainty about guilt, I hear that a lot from prosecutors as a reason to not pursue a death sentence, but that rationale has always struck me as curious if the alternative is a plea to LWOP because (1) I sure hope a prosecutor would not seek LWOP if uncertain about guilt, (2) a full trial would seem the best way to explore any residual/uncertainty about guilt rather than using the threat of a death sentence to get LWOP without any need for a trial to test the state's case, and (3) an innocent person sentenced to death is likely to get more volunteer lawyers and abolitionist advocates to help them from death row rather than when stuck with the huge number of LWOPers.

That all said, the chief point I was hoping to make with this post is to highlight that even in states like Virginia with laws and prosecutors seemingly very committed to, and quite capable in, using the death penalty, the voices of victims and the discretion of prosecutors can and will sometimes thwart a capital prosecution even in a seemingly very deserving case.

Posted by: Doug B. | Mar 2, 2016 6:32:22 PM

Just to clarify Virginia law, crimes committed after 1995 are not eligible for normal parole. Defendants are eligible for geriatric parole except for Class 1 Felonies. See Va. Code § 53.1-40.01. Rape carries 5 to life and isn't a Class 1 Felony. Given this, a life sentence for a conviction of capital murder (not First Degree Murder) would prevent the possibility of parole.

Posted by: Erik M | Mar 2, 2016 7:17:38 PM

A mandatory death penalties constitutional, and it should be imposed in cases like this.

Posted by: federalist | Mar 2, 2016 8:06:18 PM

I'm all for federalism. And the Federalist Papers. But not even Alexander Hamilton or Antonin Scalia would advocate imposition of the death penalty without adjudication of guilt and the requisite jury findings leading to the death penalty.

Posted by: Fat Bastard | Mar 2, 2016 9:40:15 PM

Even if a mandatory DP statute was possible, federalist, this kind of plea deal would still be possible. Are you suggesting not only mandatory DP sentencing, but also mandatory DP prosecution?

Posted by: Doug B. | Mar 3, 2016 7:02:07 AM

There is too much second-guessing in this case to make informed judgments/comments about it. However, as a principle, given that the decision of victim's relatives not to seek the death penalty to satisfy their own lust for revenge, or to protect themselves from needless years of trauma of subsequent appeals with no certainty of outcome, is not so rare as many would like to imply (partly reflecting divided public opinion on the efficacy of the death penalty anyway), then it is entirely reasonable and right that the views of the victim's relatives be respected. It is entirely unreasonable and irrational to argue on the one hand that the death penalty is all about victim's and victim's relatives rights, and then cherry pick only those views that favor the death penalty, saying that death is justified anyway on the level of public safety or state revenge.

Posted by: peter | Mar 3, 2016 7:28:53 AM


Your assessment doesn't make sense.

Virginia executes within 7 years, on average, since 1976, for their 111 executions. The last execution occurred after 5 years of full appeals.

I presume the families know this.

All murder victim survivor families are aware that emotional and psychological closure does not exist, but that legal and life closure (end of appeals, execution or other death) does.

The only optiona that makes sense, here, are that the two families oppose the death penalty, to such an extent, that it affected the DA's decision, unlikely with a strong death penalty proponent prosecutor, and/or that there are some case problems that we are unaware of.

Both of the cases cry out for the death penalty, if justice were the only consideration.

Posted by: Dudley Sharp | Mar 3, 2016 8:13:28 AM


Taking away life is a considerably different sanction than taking away freedom.

Criminals, judges and juries are very aware of that fact, as I presume that you are.

It is not a matter of safety but justice, as you noted but were, evidently, unaware of the differences.

But, if your comparison is only one of safety, which I find inappropriate, then you would also pick the death penalty, as it has the additonal safety of enhanced due process, enhanced incapacitation and enhanced deterrence.

Posted by: Dudley Sharp | Mar 3, 2016 8:29:50 AM

peter--if the DP is made to be a death slog over 20 years thereby deterring victims from wanting it, then something needs to be done with the process.

Doug, no I am not suggesting mandatory prosecution--but a state should have the power to require death as a punishment in a case like this if guilt is determined beyond reasonable doubt.

In a sane world of justice, he would be given a fair trial, almost certainly convicted, then executed within a few months.

Posted by: federalist | Mar 3, 2016 9:32:54 AM

Is it conceivable, in your world, federalist, that victims may not desire the death penalty no matter how swift? And that these persons might be more sane than those who find some solace in still another death?

Posted by: Fat Bastard | Mar 3, 2016 3:00:17 PM

As an abolitionist myself, as I've argued before, it may be more pragmatic to not argue against the death penalty in cases like this one, where DNA evidence confirms multiple murders. But DNA evidence isn't foolproof either.

The problem with swift punishment is that it too often takes years and years before an exoneration is proven. Indeed, in the 20s, 30s and 40s from crime to execution could be within a year or two, so of course wrongful convictions and executions were more likely.

My new book, In the Court of Deadly Assumptions, tackles another potential example from 1937.

Posted by: George | Mar 3, 2016 3:43:19 PM

Consider also that geriatric release in Virginia is very rarely granted. According to the magistrate judge in LeBlanc v. Mathena, 2013 U.S. Dist. LEXIS 189736 (E.D. Va. 2013), more than 95% of all requests for geriatric release were denied by the Virginia Parole Board "only because of the seriousness of their offense."

All this is to say that Prof. Berman's original point holds: Jesse Matthew was going to die in prison before this plea deal. Kudos to his attorneys. The capital defense bar has nearly eradicated the death penalty in Virginia.

Posted by: Rob | Mar 3, 2016 3:57:02 PM

In USA there are 15.000 homicides per year. 10.000 are punished in some way, and 2-4.000 of these 10.000 are death penalty eligible. In 2015 death sentences were 50. How many were the Matthew cases?
Kant was out of order.

Posted by: claudio giusti | Mar 3, 2016 5:18:06 PM

federalist, I remember a few weeks back I suggested parole as an alternative for resentencing in the Miller cases and you brought up the parents saying they deserve better. Here, this is what the parents want and you're saying the parents don't deserve to have a choice in the matter? Is that right?

Posted by: Erik M | Mar 3, 2016 5:31:10 PM

What I am saying is that (a) these crimes deserve capital punishment normatively and (b) victims' families, when faced with the prospect of a trial and years of appeals may just want it over. Were capital punishment swift and sure, then much of the victims' families' opposition would evaporate. My mom doesn't agree with the death penalty, but she wouldn't lose sleep over it if one of us were murdered.

As for parole hearings yanking the rug out from under victims' families, isn't that a pretty obvious issue? And of course, no one gave a shit about it when determining the evolving standards.

Posted by: federalist | Mar 3, 2016 6:53:13 PM

"People kill in prison."

I understand that. However, people in prison (a) can be isolated and/or split up based on the risk they pose, (b) approximately never put the general public at risk, and (c) the average homicide rate in local jails and state prisons in 2011 (the most recent year I found with a quick Google search) was lower than that of the average American town. All that points to a high ability to contain dangerous people without having to kill them-a measure which does not seem to add any additional "justice" as far as I can tell.

Posted by: Kirsten Tynan | Mar 3, 2016 10:24:40 PM

"A mandatory death penalties constitutional, and it should be imposed in cases like this."

As far as I know, there is no such thing as a constitutional mandatory death penalty in the United States. Per recent Supreme Court ruling in Hurst v. Florida as to what is constitutional in terms of death sentences, the jury is the final authority on whether to sentence a defendant to death or not. The implication of that is that it would be unconstitutional to require the death penalty, even if the jury finds a defendant guilty of a capital crime, because if it were required, then the jury does not have the final say.

Moreover, I don't think anyone would like the results if a guilty verdict in a capital case required a death sentence. We might see, as we did during the American Revolution in the Philadelphia Treason Trials, jurors voting not guilty rather than risk sealing the deal permanently through killing, leaving no possibility of correcting an error in the future.

And, of course, given that we know that a percentage of capital cases result in wrongful convictions, a mandatory death penalty would essentially be mandating murder or manslaughter.

Posted by: Kirsten Tynan | Mar 3, 2016 10:38:22 PM

Kirsten Tynan, I'm against the death penalty, but people do harm others in prison (including guards) and in a few cases have escaped. Plus, "justice" to those who support the death penalty includes retribution. And, it is seen as a deterrent/means to encourage pleas. These last two things a debatable balance. The death penalty provides some benefit there ... the question is if it is overall worth the candle.

Posted by: Joe | Mar 3, 2016 10:54:14 PM

Yes, people do harm others in prison, but if someone is in conditions equivalent to death row today, with the only difference being absence of the actual death at the end of the process, the only people who can be harmed inside the prison are (1) prison employees, lawyers, visitors, and others who voluntarily choose to take the risk, (2) other incarcerated people who knowingly took risks that put them in their position, or (3) incarcerated people who are there mistakenly by way of unjust conviction. People in categories 1 and 2 are basically responsible for their own risk-taking, and even then there's . People in category 3 would arguably be harmed far worse by a policy of 100% certainty of being killed than by exposure to some less than 100% risk of being killed.

So the only elevated risk to people through no fault or choice of their own by not executing someone would be if the person escaped and then harmed someone outside of the prison. Statistically speaking, that happens approximately never. If just one person every year escaped from death row, and as far as I can tell that is FAR more frequently than it actually happens, that is less than 0.03% of the death row population. That certainly represents a FAR, FAR smaller injustice than executing the roughly 4-10% of prisoners on death row in error.

What would be a definition of "justice" such that it includes the death penalty?

Posted by: Kirsten Tynan | Mar 4, 2016 2:28:13 PM

Or rather, I should say absent execution at the end of the process, since if you're in prison for life without parole, death is still at the end of the process.

Posted by: Kirsten Tynan | Mar 4, 2016 2:29:39 PM

It's statistically extremely rare for those with life or capital sentences to kill in prison. It's why the Virginia Supreme Court has pretty much barred any testimony in capital cases that discuss the issue (instead, future dangerousness must be limited to the hypothetical situation of whether they'd escape or were otherwise released).

Posted by: Erik M | Mar 4, 2016 3:41:54 PM

Take death off the table and I will plead guilty PLUS tell you where I hid the dismembered bodies •

Posted by: Docile Jim Brady „ the Nemo Me ♠ Impune Lacessit guy in Oregon ‼ | Mar 4, 2016 10:02:14 PM

I appreciate the additional commentary and repeat I'm against the death penalty.

The general point seems to be that "he can successfully be contained and prevented from committing any further harm" = "except for some tiny number of people." And, yes, that's true, and things can be done to reduce even that. It would take a major change of how we deal with prisoners but other places manage.

As to "justice," again, as an opponent of the death penalty, I'm not going to take it, but the bottom line is that some people (as cited by the opening comment) think justice has some sort of retributive component that warrants taking the life of those who take it in certain cases.

Putting aside a few cases, this is basically what "justifies" the death penalty in this country to the degree it can be. Deterrence doesn't have a lot going for it. Prof. Berman at times appeals to plea bargains, but non-capital jurisdictions manage without them & in some cases at least, coercion raises problems there. This includes some cases of false confessions.

This isn't novel -- the debate over the death penalty has been going on for some time. I myself favor if we are appealing to criminal justice philosophers. But, I'm somewhat turned off by blanket statements of people being safe in prison, when it isn't quite true.

Posted by: Joe | Mar 4, 2016 11:11:58 PM

Cesare Beccaria is the philosopher I favor.

Posted by: Joe | Mar 4, 2016 11:14:08 PM

A google search of "you will get a fair trial and then will be shot" shows that to be a quote from Colonel Klink. Nice company; but then, that tendency has always been plainly evident.

Posted by: Mark M. | Mar 5, 2016 2:52:42 AM

The general sentiment on "Hogan's Heroes" was a fair trial was not something Nazi Germany (particularly the Gestapo) thought is necessary. Any use of "fair" there - and yeah it comes up in a search - would be very sarcastic. It wasn't exactly that a truly fair trial (to the degree that's generally possible in human society) followed by the death penalty was totalitarian justice. Some, including in the days of Cesare Beccaria, might have THOUGHT that (e.g., the death penalty was not something republican governments did), true.

Posted by: Joe | Mar 5, 2016 11:46:01 AM

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