Broader Scope for Execution Approved

By Tim Craig
Washington Post Staff Writer
Wednesday, January 24, 2007

RICHMOND, Jan. 23 -- The Virginia Senate voted to expand capital punishment Tuesday by making accomplices eligible for the death penalty even if they didn't do the killing.

The bill, which goes to the House of Delegates, would reverse the state's 30-year-old "triggerman rule."

Under the policy, the state can execute only the person who performed the killing -- the one who pulled the trigger or plunged in the knife or did the beating. Over time, exceptions have been approved for crimes of terrorism, murder for hire or drug conspiracy.

The rule complicated the state's effort to try Washington area sniper John Allen Muhammad on a capital offense because it was in dispute whether he or Lee Boyd Malvo fired the rifle during their 2002 killing spree. Muhammad was eventually tried, convicted and sentenced to death using the terrorism exception.

"There are clearly situations where people are as culpable and blackhearted as the person who pulls the trigger," said Mark D. Obenshain (R-Harrisonburg), sponsor of the bill to repeal the rule.

The bill, approved 28 to 11, allows for the death penalty if the accomplice has the same intent as the killer. Separately, the Senate voted 30 to 10 to make the slaying of a judge a capital offense.

Death penalty opponents say they are troubled that state legislators are pushing to make more crimes eligible for execution while other states appear to be moving away from the practice.

Courts in Maryland and California temporarily halted lethal injections last month. Florida Gov. Jeb Bush (R) suspended the practice after the botched execution of a murderer took 34 minutes and a second injection.

"Most of the country is waking up to the fact there has been a lot of mistakes in meting out the death penalty," said David I. Bruck, director of the Virginia Capital Case Clearinghouse. "Now Virginia is drifting off in the opposite direction, making the death penalty available in more cases and guaranteeing we will make more mistakes."

But during a debate on the Senate floor, Obenshain spoke about a hypothetical bank robbery.

"If one person has a gun and the other person does not, and the person without the gun said: 'Shoot her. Shoot that teller,' without the triggerman rule, the person who is directing the killing would not be eligible for capital murder. With this bill, they would," Obenshain said.

The bill has been endorsed by the Virginia Crime Commission, which should increase its chances of passage by the House. Gov. Timothy M. Kaine (D), who has signed four death warrants even though he personally opposes the death penalty, has yet to take a position on the bills, his spokesman said.

After Texas, Virginia leads the nation in executions, according to the Death Penalty Information Center, which monitors the practice. Since 1976, when the Supreme Court reinstated executions, Virginia has put 98 convicts to death.

The state's reputation for using the death penalty troubles some legislators.

"We're killing enough people in Virginia," said Sen. Ken Cuccinelli II (R-Fairfax), who voted against the repeal of the triggerman rule but for the bill on slayings of judges. "We already have three very big exceptions [in the triggerman rule], so it isn't like it's something we don't cover to some degree now."

In an interview, Cuccinelli tried to undermine Obenshain's argument about the hypothetical bank holdup.

"What if two guys go into the bank and one shoots five tellers while the other one stands there thinking, 'Why did he do that?' " Cuccinelli said.

"It's going to look to the jury like they were executing a plan, and he's going to be executed like the first guy."

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