Summary of "Broken Justice: The Death Penalty in Virginia"

Document Date: March 19, 2004
Affiliate: ACLU of Virginia

Summary of “Broken Justice: The Death Penalty in Virginia”


§ Virginians cannot rely on the death penalty system to produce results that are either fair or accurate. Virginians cannot be assured that the people on death row are actually guilty, and if they are guilty, whether they should have been sentenced to death.

§ Yet support for the death penalty is still strong-aside from Texas, Virginia ranks second (89 executions) to Texas in executions since 1976.

§ There are likely to be innocent people on death row but they have no ability to demonstrate their innocence through the legal system, because Virginia has a law that bars raising any claims of innocence 21 days after sentencing, even if there was no possible way the defendant could have the evidence beforehand. No other state has this law. The Virginia legislature has passed a law to reform the 21-day rule, but in our opinion, the law has not gone far enough to protect the innocent.

Convicting the Innocent

§ More than 900 people have been executed in the United States since the death penalty was restored in 1976. No one can be sure that only the guilty were punished.

§ Over 110 men and women have been removed from death row during this period because they were proven innocent.

§ In Virginia there is disturbing evidence that at least six individuals were wrongfully convicted and that two of them – Roger Coleman and Joseph O’Dell – were executed.

§ One exoneree, Earl Washington, was proven innocent. With an IQ of 69, Earl, after extensive police questioning, admitted to a 1982 murder and rape that subsequent DNA tests confirmed he did not commit. After the DNA tests confirmed that he did not commit the crime, Earl was sentenced to life in prison without parole in 1994. In 2000, after 18 years in prison, the governor granted Washington an absolute pardon. He was the 89th person exonerated in the United States and the first death row inmate released in Virginia due to innocence.

Prosecutorial Discretion-Deciding Who Gets the Death Penalty

§ The decision to seek death in any given capital murder case is made by a single prosecutor elected in the jurisdiction where the murder took place. There are no standards to guide prosecutors, and there is no oversight agency to review their decisions.

§ Prosecutors in some Virginia jurisdictions routinely seek the death penalty, while prosecutors in other jurisdictions never or almost never ask for it.

§ Geography and race frequently determine whether a defendant is charged with capital murder.

Prosecutors Who Ignore the Law

§ The Center for Public Integrity recently identified 131 cases of alleged prosecutorial misconduct in Virginia, at least three of which involved a capital case.

Access to the Courts

§ Virginia courts have very strict procedural rules that make it extremely difficult to enter new evidence after trial – even if it is evidence of innocence.

§ The Supreme Court of Virginia is required to review all death sentences to assure that the death sentence is not “”excessive or disproportionate to the penalty imposed in similar cases. “” In the 26 years since the legislature first mandated proportionality review, the Court has never found a death sentence to be excessive or disproportionate.

§ A death sentence should be based on what the defendant has done, not on what his lawyer did or did not do, yet regardless of the importance of the error, case law and court doctrine in Virginia make it nearly impossible for capital defendants to prove that they received ineffective assistance of counsel.

Juveniles and the Death Penalty

§ A 2002 Gallup Poll showed that 69 percent opposed the death penalty for juveniles.

§ The U.S. Supreme Court prohibits execution for crimes committed at the age of 15 or younger.

§ Nineteen states permit the executions of person who committed crimes at the age of 16 or 17. Virginia is one of these states.

Mental Retardation and the Death Penalty

§ In 2002 the Supreme Court held that it was a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment to execute a mentally retarded person. It left it to the states to determine who was mentally retarded and how that decision would be determined.

1. Impose a temporary halt on executions in Virginia.

2. Appoint an independent body to study the death penalty.

3. Collect data about every potential capital case in the state-race, ethnicity, gender and age of victim and offender. This will aid prosecutors in deciding which cases to pursue as capital cases.

4. Require the Virginia Supreme Court to record and publish all cases of prosecutorial misconduct or report this information to the Virginia state bar for disciplinary action.

5.Eliminate the 21-day rule and allow more time for counsel to submit non-DNA evidence of innocence.

6. Improve the state appeals process.

7. Improve the quality of representation by requiring attorneys to undergo training and testing before being appointed counsel in capital cases.

8. Abolish the juvenile death penalty.

9. Improve the law so that mentally retarded people will not be sentenced to death or executed.

View a full report on Virginia’s Broken Justice System