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Path to execution swifter, more certain in Va. - Richmond Times-Dispatch: Archive
Path to execution swifter, more
certain in Va.
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Posted: Sunday, December 4, 2011 12:00 am
Frank Green
Texas, which leads the United States in number of
executions, is second to Virginia, carrying out less
than half its death sentences.
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Serving life in prison without possibility of parole,
Robert C. Gleason opted to die by execution instead
of old age and is Virginia's newest death-row inmate.
He earned the distinction by killing fellow prisoners in
the state most likely to grant his wish. Since
executions resumed in 1977, nearly three out of four
condemned prisoners in Virginia have been put to
death, the nation's highest rate.
Texas, which leads the United States in number of
executions, is second to Virginia, carrying out less
than half its death sentences. In most death-penalty
states, the ratio is fewer than 1 in 10.
While Virginia's record is clear, its causes and
implications are in dispute.
Authorities say Virginia's capital-murder law was
tightly written and that trial and appeal courts here do
a better job than elsewhere; critics argue Virginia trials
have plenty of errors and that unlike elsewhere,
appeals courts fail to catch them.
"I think the answer is that there is a little truth in both
views," said Richard J. Bonnie, director of the Institute
of Law, Psychiatry and Public Policy at the University
of Virginia. "Virginia's law was indeed more tightly
drafted, but post-conviction review is less aggressive
than in other states."
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411212016 Path to execution swifter, more certain in Va. - Richmond Times-Dispatch: Archive
Bonnie, who added that he doesn't have "a horse in
this race," cautioned that while the execution ratio in
Virginia is striking, "one has to be very careful about
generalizing from the data."
Virginia inmates spend half the time, 7.1 years, from
sentencing to execution than the average wait
nationally, and the relatively large number of
executions and fewer death sentences here has left just
11 killers on death row.
The newest, Gleason, was serving life for murder
when he killed a cellmate in 2009. He threatened to murder again unless given a death sentence, and in
2010, he killed a Red Onion State Prison inmate. He was given two death sentences this year.
Virginia's tally through 2010 — 108 executions out of 149 death sentences — is in large part a result of
fewer reversals, historically at least, by the Virginia Supreme Court and the 4th U.S. Circuit Courts of
Appeals.
By comparison, California, which has conducted just 13 executions since 1977, has a death-row
population of more than 700, among them Alfredo Prieto, condemned in 1992 for the rape and murder
of a 15-year-old girl in Ontario, Calif.
Prieto can take no comfort in California's low execution rate because he is also under a death sentence in
Virginia. He was extradited here in 2006 after DNA implicated him in a 1988 rape and double murder in
Fairfax County.
Prieto's case, however, suggests that either Virginia trial courts are making more errors in recent years,
or appeals courts — which have changed greatly in composition over the last 15 years — may be
exercising more scrutiny. Three of the past seven direct appeals in death cases to the Virginia Supreme
Court, including Prieto's, have been reversed. Prieto was sentenced to death again and has a new appeal
before the justices.
Justin Wolfe, another former Virginia death-row inmate, had his conviction and death sentence tossed
out by a federal judge in Norfolk this year, though the state is appealing to the Richmond-based 4th U.S.
Circuit Court of Appeals, and the death sentence has been reinstated for now.
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Virginia Attorney General Ken Cuccinelli said the state's overall record since 1977 shows its law
exceeds the demands in most state statutes and the Constitution.
The state, he said, "has one of the most demanding capital-murder statutes in the country, requiring our
prosecutors to prove an especially aggravated murder in order to merit a death sentence."
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1/12/2016 Path to execution swifter, more certain in Va. - Richmond Times-Dispatch: Archive
Virginia prosecutors, he added, "rarely seek a death sentence unless the case involves overwhelming
guilt and is truly one of the worst of the worst."
"We also have very conscientious courts and judges who go the extra mile to give their full, fair, and
expeditious attention to any case involving the death penalty. This all results in cases which rarely
contain reversible error or questions about guilt," he said.
From 1977 through 2010, fewer people were sentenced to death in Virginia than in other states with
similar populations: Ohio, 230; North Carolina, 443; and Georgia 321. Virginia's per-capita execution
rate, however, ranks fourth nationally. Alabama and South Carolina, with populations roughly half the
size of Virginia, sentenced to death 439 and 194 people, respectively, during the same period.
However, at least one former Virginia prosecutor, William H. Fuller III of Danville, sought the death
penalty in virtually all death-eligible cases — not just the worst cases — and there have been some
egregious killers in other parts of the state for whom the death penalty was either not sought or imposed.
Research has shown the type of community is a major factor in Virginia and elsewhere in whether the
death penalty will be sought. Suburban and rural prosecutors tend to seek the ultimate sanction more
often than their urban counterparts, according to a study by Virginia's Joint Legislative Audit and
Review Commission.
A survey by the Death Penalty Information Center found that excluding Texas, three Virginia localities:
Prince William County, with nine, and Chesterfield County and Virginia Beach, each with eight, were
among the top 15 localities nationally to win executions from 1977 through September.
Also, when death-penalty laws in Virginia were rewritten in the mid-1970s, they included only three
death-eligible crimes. Since then, a dozen others have been added by the legislature.
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In addition to a court finding a defendant guilty of capital murder, a separate court proceeding is held
at which it must be found that either that the crime was so vile or the killer so dangerous that execution is
warranted.
Stephen Northup, a Richmond lawyer and executive director of Virginia for Alternatives to the Death
Penalty, disagreed with Cuccinelli's assessment and complained that the Virginia system moves too
quickly and without enough scrutiny.
"I would say that when it comes to death, certainty is more important than efficiency," Northup said.
"We're increasing the risk that we're going to execute an innocent person."
One former Virginia death-row inmate, Earl Washington Jr., was exonerated in a 1982 rape and murder
that DNA testing has since proven someone else committed.
"Mr. Washington was not saved by any judicial process in Virginia; he was saved by the intervention of
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41212016 Path to execution swifter, more certain in Va. - Richmond Times-Dispatch: Archive
two governors (L. Douglas Wilder and Jim Gilmore)," Northup said. "It's pretty scary when you think
you've got to depend upon clemency to produce the right result instead of the judicial system."
In most states and in non-death cases in Virginia, the state habeas petition, a civil action challenging the
constitutionality of a trial, is initially filed in the trial court, Northup said. But in Virginia, he said, the
General Assembly gave jurisdiction for such appeals to the Virginia Supreme Court, eliminating a level
of review. Also, unlike most states, there is also a deadline for filing those petitions.
U.Va.'s Bonnie said that, "almost from the beginning, Virginia has basically tried to expedite the process
of state post-conviction review and reduce the kinds of claims that can be raised in state courts."
As a result, Bonnie said, most of the post-conviction review action is going to be in federal court,
particularly the 4th Circuit .
"For many years, a majority of judges on the 4th Circuit had a strong inclination to try to defer to the
state courts and uphold the finality of state court judgments and were reluctant to set aside death
sentences," he said.
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In 2000, a nine-year study of capital-murder cases nationwide by the Columbia University School of
Law found that Virginia was an exception to a capital-punishment system in which appeals courts were
finding many trial errors. From the mid-1970s to 1995, just 18 percent of Virginia death cases were
reversed by appeals courts, while nationally it was 68 percent.
A follow-up study in 2002 found that the higher a state's death-sentencing rate — the number of death
sentences per 1,000 murders — the more errors and reversals occurred. The research determined that
Virginia had one of the lowest such death-sentencing rates in the country and did a good job keeping
political pressure off judges, factors that tended to be lacking in states with high appeals court reversal
tates.
But the study also identified two factors present in Virginia associated with states with high error rates: a
relatively large African-American population and a relatively high homicide rate for whites compared to
that for blacks.
The authors concluded that the risk of serious capital error in Virginia is, on the whole, moderate but not
low enough to explain the state's extremely low reversal rate.
They also found — as did Virginia's Joint Legislative Audit Review Commission — that strict adherence
to procedural rules limiting the review of death cases by appeals courts here may have let stand the
convictions of people who did not get fair trials.
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Robert Blecker, a professor at the New York School of Law, supports execution for the worst
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1/12/2016 Path to execution swifter, more certain in Va. - Richmond Times-Dispatch: Archive
offenders and said that on its face, Virginia's record appears to be exemplary.
"It is a ratio to which all states with a death penalty should aspire," said Blecker, author of the recently
published "Let the Great Axe Fall," based in part on 12 years interviewing hundreds of killers at the
District of Columbia's former Lorton Reformatory in Fairfax County.
"I heard stories from guys who murdered in D.C. but would not in Virginia because of 'what that state
has waiting for me.' I can tell you that the guys feared Virginia's death penalty — whether from the high
ratio, or for other reasons," he said.
Blecker said fewer death-case reversals by appeals courts here does not necessarily mean they are not
doing a good job reviewing cases — it could mean that abolitionist judges in other parts of the country
are finding too many errors.
"No trial is perfect," Blecker said. The question is whether errors were serious enough to have changed
the outcome. He said judges on some appeals courts are using minor errors as pretexts for reversals.
"It could be that the 4th Circuit is really calling it accurately," he said.
But, said Blecker, Virginia's execution ratio could obscure problems.
"We should condemn very, very few to death, and execute almost all of them," he said. He said it
appeared that Virginia, with 15 death-eligible crimes, might want to cull the list.
"Ideally, the legislature should construct a death-penalty statute that truly isolates only the worst of the
worst of the worst," he said.
Prosecutors should pursue the death penalty only in the most egregious cases, judges should preside
over trials with a zealous eye toward the rights of the defendants and juries should condemn only those
who truly deserve it, Blecker said.
"If the three branches of government — legislature, executive and judiciary do their jobs right, and the
people's representatives (the jury) takes its responsibility seriously, the net effect should be a ratio that
only Virginia can boast of," he said.
Northup said the kind of capital-punishment system advocated by Blecker is what was envisioned by the
U.S. Supreme Court in a 1976 ruling that permitted capital punishment to resume and prompted states
such as Virginia to rewrite laws.
"T think his rationale to support the death penalty is honest and I think it is well-grounded," said Northup
of Blecker. But, he said, "The trouble is that there is a huge gap between theory and practice. ... We
don't live in a utopia."
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