By Peter Finn
Washington Post Staff Writer
Monday, February 3, 1997; Page A01

Preparing for the 1995 murder trial of Matthew Erdman, Hampton County Commonwealth's Attorney Linda D. Curtis was confident that she would win a conviction and a death sentence.

Erdman sweet-talked his way into the home of Alecia Rutland, 42, whom he had met when he trimmed trees at her house. Once in, he strangled Rutland and cut her throat before making off with her car and purse. He was caught a few days later, on Jan. 12, 1995, riding around in Rutland's car.

Erdman, 32, who was convicted, had a long criminal record that included a previous assault on a woman whose throat was slashed. She survived.

"I've tried numerous capital cases, and while you can never be sure how a jury will act, that was one where I thought the sentence would be death," Curtis said.

But the jury chose life in prison without parole.

More and more juries are doing the same thing. The number of people given the death sentence in Virginia has plummeted since the state began allowing jurors to sentence murderers to life without parole two years ago. Last year, when Virginia executed eight murderers, more than any other state, there was only one new admission to death row.

In 1995, six people were sentenced to death. But in 1994, the year before the law changed, the death sentence was imposed 10 times, according to the state Corrections Department.

Similar declines also have occurred in Georgia and Indiana, two other states that have introduced life without parole in recent years. And in Maryland, where life without parole has been a long-standing option, judges and juries show a clear preference for it, over both death and life with the possibility of parole. The District does not have capital punishment.

Death penalty opponents and legal analysts argue that the decline in death sentences shows that juries tend to reject execution if they are convinced that a capital murderer will never again present a danger to society. Prosecutors also are more willing to plea-bargain, because they find life without parole an acceptable alternative to execution, legal analysts say.

Juries' reluctance to impose the death sentence on inmates who will never get out also may end up sparing the lives of some inmates already on death row.

Until Jan. 1, 1995, Virginia jurors could choose between death and a life sentence that might or might not lead to parole, depending on the defendant's previous convictions. But jurors in capital cases were not told whether a defendant's criminal record would eliminate the possibility of parole.

Now, because of a 1994 U.S. Supreme Court decision, jurors are told. A current Virginia death row inmate, Joseph Roger O'Dell III, is seeking to have the Supreme Court apply that rule retroactively. If the justices do, O'Dell and dozens of death row inmates in Virginia and two other states would have to be resentenced.

Since the Allen administration changed Virginia's sentencing rules in 1994, eight Virginia defendants, including Erdman, have been convicted of capital murder. Six of them received life without parole, and two were sentenced to death, one by a judge, according to the Virginia Sentencing Commission and the Corrections Department. The five other inmates who entered death row after Jan. 1, 1995, had committed their crimes before the law was changed.

The total number of capital cases brought by commonwealth's attorneys dropped from 126 in 1993 to 84 in 1995, the last year for which figures are available, but that decline does not account fully for the falloff in death sentences, lawyers said.

Death penalty supporters and opponents alike said the legal change inevitably helped reduce the number of death sentences, even in Virginia, which ranks third among the states in the number of people executed since the U.S. Supreme Court reinstated capital punishment in 1976.

"It's not surprising that it would have an effect on jurors," said Prince William County Commonwealth's Attorney Paul B. Ebert (D), whose office has sent more murderers to Virginia's death row than any other jurisdiction. "In a lot of cases, I've seen juries come back and ask, `When will they get out?' and you know they are looking for the life-without-parole option. . . . But I continue to believe in the death penalty, and I think it's just and appropriate for vile crimes."

According to a poll conducted for the Death Penalty Information Center, which opposes capital punishment, support for the death penalty nationwide falls from 77 percent to 41 percent if the alternative is life without parole accompanied by restitution.

"People were frustrated that criminals got out after five or 10 years, and that was a real stimulant for the death penalty," said Richard C. Dieter, executive director of the center, which is based in Washington. "With life without parole, jurors have a better alternative and one they are more comfortable with."

The same survey suggests that only 4 percent of Americans believe that convicted murderers will spend the rest of their days in prison. "The key is what jurors understand about sentencing," said Scott Soudby, a professor of law at Washington and Lee University in Lexington, Va., who surveyed jurors in California for an ongoing National Science Foundation study. "In California, if the instructions from the judge were clear that this person will spend his natural life in prison, there was a significant drop in the likelihood of a death sentence."

In the Erdman case, juror Annie Avent said, the lack of parole was critical. "If a person is dangerous, you don't want him to get out to cause harm again," she said. "I thought about that. . . . I'm not sure what we would have done if we knew he could get out. I'm glad we had the choice we did."

Maryland has allowed judges and jurors to choose life without parole since 1987. Previously, the options were death and life with the possibility of parole.

Since 1987, 23 convicted murderers have been sentenced to life without parole, 11 have been sentenced to death, and 10 have received life sentences with the possibility of parole, according to the public defender's office in Baltimore.

"It seems to me [that] with life without parole, you are offering a more persuasive argument against the death penalty," said Katy O'Donnell, a lawyer in the capital defense division of the defender's office. "It satisfies the need for protection of the community, as well as guaranteeing severe punishment."

Life without parole has changed jury behavior in Georgia and Indiana, as well.

In Indiana, which introduced life without parole in 1993, one death sentence was imposed in 1995 and 1996, compared with 10 from 1991 to 1993.

"I can point to particularly brutal murders where I think death would have been imposed if life without parole were not available," said Paula Stites, a staff attorney with the Indiana Public Defender Council.

Since the sentence was introduced in Georgia on May 1, 1993, nine defendants who were eligible for life without parole received the death sentence instead, an average of fewer than three a year. Before life without parole, an average of 10 people were sentenced to death annually, according to the multi-county public defender's office in Atlanta, a state agency that monitors capital cases.

"I've tried over 30 death penalty cases, and life without parole is having a significant impact not only on verdicts but in plea negotiations," said Mike Mears, of the defender's office. "Emotionally, jurors find that decision easier, and district attorneys have political cover for a negotiated plea."

The evidence supporting a shift in jury behavior is not universal, however. In Mississippi, six of seven juries in capital trials last year recommended death, even though life without parole was their only other option. And the number of people sentenced to death in Mississippi did not change with the introduction of life without parole in 1994, said Sheila O'Flaherty, a board member of the Mississippi branch of the American Civil Liberties Union.

"Juries are still going for death," O'Flaherty said. "The quality of a defendant's representation still seems to be the key factor in whether or not they get it."

Curtis said that although the number of death sentences may drop in future years, executions will not disappear in Virginia.

"The truly heinous crimes – the mutilations, the child killings – will continue to get death," she said. "What I fear – and I've been in this business a long time – is that the political climate will change, and when we have a prison system full of geriatric killers, parole will be reintroduced. Then the future dangerousness of these people becomes real again."