Virginia's Efficient System of Death
By Stephen C. Fehr
Virginia's politicians and courts have set up such an efficient system of carrying out the death penalty that Virginia now executes more murderers, given its population, than any other large state.
The pace will be striking this month; the state had scheduled five executions in 23 days. When 1999 is over, Virginia could break its record of 17 executions in a single year.
Texas puts to death more murderers, but Virginia's number of executions per 10,000 people is highest among states with populations of more than 1 million, according to Justice Department records tabulated by the District-based Death Penalty Information Center.
"Virginia is trying to send a message to the rest of the states that they aren't going to tolerate any wrongdoing -- an eye for an eye," said Noah Williams, whose brother Terry was scheduled to die this Tuesday for the murder of an elderly Danville man and taking $3 from his wallet. His execution was stayed Friday by the U.S. Supreme Court.
Virginia is unusual, according to state officials and death penalty analysts, because politicians have decided to limit the appeals of death row prisoners because state and federal judges have taken a hands-off approach after death sentences are handed down.
"All three branches are in tune with each other in moving the death sentences along," said Scott Sundby, a law professor at Washington and Lee University.
The state's pro-death penalty governors, attorneys general and legislatures have worked together in the last four years to enact laws shortening what had been a lengthy appeals process.
In most states with the death penalty, it takes an average of nine years between the sentencing and execution as killers work the appeals system. Virginia has cut that down to less than five years; one of the men scheduled to be put to death this month was sentenced less than two years ago.
The state Supreme Court and 4th U.S. Circuit Court of Appeals in Richmond rarely intervene after a trial concludes.
Since 1976, when the death penalty was reinstated, only six of 107 Virginia death sentences have been overturned or commuted to life in prison, a rate of about 6 percent. The national average is about 33 percent; Maryland's appeals courts have overturned 23 of 45 death sentences, more than 50 percent. The District does not have the death penalty.
"Virginia seeks to execute everyone on which the death penalty is imposed," said Bill Stuntz, a University of Virginia law professor. "You'd think that would be true everywhere, but look at the other southern states that have huge death row populations compared to Virginia. If [those] states really wanted to execute people, they'd do 100 a year."
Texas has almost 12 times as many death row inmates as Virginia, which has 38, but a slightly lower execution rate. Eleven of the 20 states ahead of Virginia in the numbers of death row inmates are in the South.
The state Supreme Court and 4th Circuit appeals court generally are regarded as conservative, as was evident recently when the 4th Circuit ruled that federal law enforcement officials are not bound by the U.S. Supreme Court's 1966 ruling requiring police officers to warn suspects they have the right to an attorney and the right to remain silent or risk having any statements they make used against them.
"We in Virginia have the double whammy of a state Supreme Court and federal courts loath to overturn a death sentence," Sundby said. "In other parts of the country, state supreme courts and many federal courts are more inclined to intervene."
At the same time that Virginia has been streamlining its appeals process, Congress passed legislation in 1996 sharply limiting federal appeals by death row inmates, further reducing their options.
And Virginia's juries and prosecutors have not been hesitant in seeking the death penalty for the worst crimes, reflecting public opinion polls that show overwhelming support for capital punishment in the historically conservative Old Dominion.
"I've seen a vast change in people's attitudes," said Paul B. Ebert (D), the prosecuting attorney in Prince William County, who tried one of the inmates about to be executed. "When the death penalty first became available to us, half of the [jury] panels opposed it. Today, it's 10 percent."
The result is "a tight system that moves fast," said Richard Dieter, director of the Death Penalty Information Center, the leading organization watching capital punishment trends nationally.
As part of a package of reforms, the Virginia General Assembly approved a rule saying no new evidence can be introduced in any of the appeals courts once a judge signs the court's order and 21 days have passed. The intent was to reduce what lawmakers consider frivolous, endless appeals.
Virginia also is stingier than most states, analysts said, in allowing defense attorneys to claim during appeals that errors in procedures were made at the trial level. And Virginia's top prosecutor moves quickly. After the 4th Circuit turns down an appeal, the attorney general has 30 days in which to seek an execution date from the trial court.
"On the very day the 4th Circuit turns the appeal down, the attorney general faxes a letter to the defense attorney saying, 'I want to be in court the next day,' " said Bill Geimer, a law professor at Washington and Lee.
Virginia's execution rate could drop in the next few years, analysts said. The current spate of executions -- more are scheduled this summer -- is something of a blip because the state Supreme Court heard a batch of murder appeals in 1995 and 1996 that went to the federal appeals courts around the same time. The pleas were denied, and the ensuing executions coincidentally have been grouped together.
The state is sentencing about eight people a year to death, but executed 13 last year and could perform as many as 17 executions this year, so the execution rate is bound to go down in the future, Dieter and others said.
Death penalty opponents and the small legal community that represents death row inmates are highly critical of Virginia's system, saying it can hastily put innocent people at risk of being killed.
They also question the timing of the killings around Lent and Easter; Roman Catholic Bishop Walter F. Sullivan of Richmond said Virginia is getting a reputation as "the execution state."
"Virginia and Texas are absolutely the bottom of the barrel. There's no due process in either state. In other places, there's still some basic concern for fairness," said Stephen B. Bright, director of the Southern Center for Human Rights in Atlanta.
Bright and others contend that in addition to eliminating several steps in the appeals process, Virginia's politicians tolerate a public defender system that often supplies indigent defendants with inferior, underpaid lawyers.
In Terry Williams's case, the trial judge and a U.S. District Court judge ruled that Williams was poorly represented during the sentencing hearing by a lawyer who did not bring up mitigating circumstances such as Williams's being borderline mentally retarded. But the state Supreme Court and 4th Circuit rejected a new sentencing hearing.
"He didn't get a good defense," said Noah Williams, who has written Gov. James S. Gilmore IIII asking for clemency for his brother.
If the U.S. Supreme Court denies the appeal, the stay ends. If the appeal is granted, the stay will remain in effect until the case is decided.
A spokesman for Attorney General Mark L. Earley (R) said, "Not only are death row inmates afforded all due process, but victims' families are also taken into consideration."
Critics said what's happening in Virginia points up how unevenly and unfairly the death penalty is being implemented across the nation.
The American Bar Association has called for a moratorium, citing the mishmash of differences between states and even counties within states.
The prosecuting attorney in Baltimore County seeks the death penalty in capital cases more often than the one in Baltimore City, analysts said.
Maryland has only 17 death row inmates and has executed four people since 1976. Yet both Virginia and Maryland are under the 4th Circuit federal appeals court.
Maryland is politically more ambivalent than Virginia about the death penalty, analysts said.
Maryland juries opt for life imprisonment without parole, also available in Virginia. Maryland defendants often get better lawyers, death penalty opponents say, because Virginia pays less to court-appointed attorneys in capital cases than virtually any other state.
"Maryland doesn't use the death penalty very often, and if they do, the judges look at the cases closer" than in Virginia, Dieter said.
Margaret Rigney, of Woodbridge, used to oppose the death penalty until her son Timothy, 30, was shot to death in 1991 by a gunman angry that Rigney was having trouble opening the cash register at the Manassas pizza shop where he was manager.
The gunman, Carl Chichester, 36, of Manassas, is scheduled to be executed April 13.
"I was there once. I've said, 'We don't have the right to take someone's life,' " Margaret Rigney said. "But when someone close to you dies, you realize it has to be stopped. There's no alternative. [Chichester] has to die. There's no glory in that. Hate wasn't part of Tim's makeup, and I pray to God it isn't part of mine."
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