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    Document Summary
    - Report Published -

    Report Document No. 7
    PUBLICATION YEAR 2002

    Document Title
    Review of Virginia's System of Capital Punishment

    Author
    Joint Legislative Audit and Review Commission

    Enabling Authority
    30-58.1

    Executive Summary
    On November 13, 2000, the Joint Legislative Audit and Review Commission (JLARC) unanimously approved a subcommittee report recommending that JLARC staff conduct a study of capital punishment in Virginia. This report examines the State’s implementation of the capital punishment statutes by focusing on two important elements of the system: the use of prosecutorial discretion by Commonwealth’s Attorneys, and the judicial review of capital murder cases in which sentences of death have been imposed.

    This review comes at a time when serious questions are being raised about the State’s use of the death penalty. One of the most serious complaints is that the system is racially biased, systematically exposing black persons who are arrested for capital murder to the death penalty in larger percentages than their white counterparts. Beyond the question of race, there is a general concern that the small numbers of eligible cases where prosecutors decide to seek the death penalty are not meaningfully distinguishable from the many in which they do not. This, it has been argued, speaks to the arbitrary manner in which prosecutors apply the death penalty statutes in Virginia.

    There are also concerns about the fundamental fairness of Virginia’s judicial review process for capital cases in Virginia. Many believe that Virginia’s myriad of procedural restrictions bar the Courts from considering the merits of the claims raised on appeal by defendants who have been sentenced to die. Critics of the system contend that this has reduced the judicial review of death penalty cases to a hollow process, virtually assuring that some persons who are convicted of capital murder will be executed despite having received constitutionally flawed trials.

    Supporters of the Commonwealth’s system of capital punishment suggest that many of the positions advanced by critics of the system are spurious. They point out that Virginia’s statutory scheme for capital murder appropriately distinguishes those first-degree murder cases that qualify for the death penalty from those that do not. Moreover, supporters of the system argue that local prosecutors will pursue the death penalty for only the most heinous of cases in which evidence of guilt is overwhelming. Without the most convincing evidence, it is stated, prosecutors will be more likely to seek a plea agreement even if the nature of the crime supports the pursuit of the death penalty. These decisions, it is argued, often appear arbitrary to those who lack insight into the nature of evidence surrounding the case.

    Regarding the issue of judicial review, supporters of the death penalty agree that lawyers often raise claims that the higher courts are procedurally barred from considering. Still, those in favor of the death penalty argue that most of these claims either involved trial errors that are deemed by the higher courts to be harmless, or they otherwise lacked merit. Given these circumstances, it is believed by supporters of capital punishment that any significant statutory changes made to weaken some of the restrictions in the judicial review process would delay the system with frivolous litigation to the detriment of both the Commonwealth and the ends of justice.

    Until now, the debate surrounding these issues has not received the benefit of systematically collected data on the application of Virginia’s laws governing the use of capital punishment. Rather, the debate has been advanced largely on the basis of anecdotes which have been variously used to demonstrate either the strengths or weaknesses of the system. This report attempts to address that problem through a detailed analysis of cases that involved capital-eligible murders and a review of the outcomes of the State’s judicial review process.