Virginia

Virginia

Record Lows Set Across the U.S. For Death Sentences Imposed in 2018

2018 was a record-low year for death-penalty usage in the United States, as nineteen death-penalty states set or matched records for the fewest new death sentences imposed in the modern history of U.S. capital punishment. (Click on map to enlarge.) Thirty-six U.S. states—including seventeen that authorized capital punishment in 2018—did not impose any death sentences in 2018, while California and Pennsylvania, which collectively account for nearly one-third of the nation’s death-row population, imposed record lows. Every western state except Arizona set or tied a record low, and Arizona, which imposed two new death sentences, was just one above its record low. Several southern states that were once among the heaviest users of capital punishment have now gone years without imposing any new death sentences.

For the first time in its modern history, North Carolina has gone two consecutive years without a death sentence, and it has imposed one new death sentence in the past four years. Only three capital trials took place in the state in 2018, and jurors rejected the death penalty in each. Gretchen Engel, executive director of North Carolina’s Center for Death Penalty Litigation, said, "Jurors are turning away from the death penalty and, in response to less favorable jury pools, prosecutors are seeking the death penalty less. And so, this trend away from the death penalty is really being led by citizens who've been summoned for jury duty." In Wake County (Raleigh), one of the 2% of U.S. counties that was responsible for a majority of death-row prisoners as of 2013, the last nine capital trials—including one in 2018—have resulted in life sentences. According to the North Carolina Office of Indigent Defense Services, taxpayers would have saved $2.4 million if prosecutors had not sought the death penalty in those cases. For the seventh consecutive year, Virginia did not sentence anyone to death in 2018. Though second only to Texas in the number of executions, Virginia has seen a dramatic decline in death sentences since establishing regional capital defender offices to provide quality representation to capital defendants. Georgia and South Carolina each marked four years with no new death sentences, a change that can also be attributed, at least in part, to improved representation.

Two of the states with the nation’s largest death rows, California and Pennsylvania, had historically low numbers of death sentences in 2018. California imposed only five death sentences, its fewest since reinstating the death penalty in 1978 and 38 fewer than its peak of 43 in 1999. Pennsylvania imposed a single death sentence for only the second time in the modern era. The previous year in which only one sentence was imposed was 2016. Neither state has carried out an execution in more than a decade, but California has the largest death row in the U.S., with 740 prisoners, and Pennsylvania has the fifth-largest, with 160.

Father of Murdered Charlottesville Protester Opposes Death Penalty

Mark Heyer, whose daughter, Heather Heyer (pictured), was killed in 2017 while protesting a white supremacist rally in Charlottesville, Virginia, says he does not want federal prosecutors to pursue the death penalty against the man who killed his daughter. James Alex Fields, Jr., a 21-year-old who identifies as a neo-Nazi, was tried in Virginia state court and convicted of murder and a litany of other crimes for driving a car into a crowd of protesters, killing Heather Heyer and injuring many others. On December 11, the state-court judge accepted the jury’s sentencing recommendation and sentenced Fields to life in prison plus 419 years and a fine of $480,000. However, Fields still faces federal hate crime charges arising out of the incident, including one murder charge for which prosecutors could seek the death penalty.

Mark Heyer told BuzzFeed News, “I don’t relish the thought of [Fields] getting the death penalty. That’s my belief. I’d rather him get his heart straight and get life [in prison].” On the issue of Fields’s hateful beliefs, Heyer wondered, “What happened to make him hate that much? You don’t just wake up in the morning like that. He had hatred building up in him for years.” Heyer expressed sympathy for Fields’s family, saying, “He was too stupid and too young to realize what he was about to do would change his whole life. I think about his mother and what she’s having to go through.” During the state court trial, Fields’s lawyers presented evidence that he had suffered from psychiatric disorders dating back to his early childhood. Heather Heyer’s mother, Susan Bro, has not publicly shared her views on the appropriate punishment for Fields, but has promoted her daughter’s legacy of fighting racism. In an email to BuzzFeed News, she wrote that killing Fields “would not bring Heather back.”

Federal prosecutors have not yet announced whether they will seek the death penalty against Fields. Whether they are able to do so may depend, in part, upon the outcome of an unrelated case being considered by the U.S. Supreme Court. On December 6, 2018, the Court heard argument in Gamble v. United States, a challenge to a legal concept known as the “separate sovereigns” doctrine, which allows a defendant to be tried in state and federal court for the same conduct. Terance Gamble, who was charged in both state and federal court with being a felon in possession of a firearm, argued that facing both state and federal charges violated the Constitution’s double jeopardy clause, which protects against being "twice put in jeopardy” “for the same offence.” If the Court rules in Gamble’s favor, it could block Fields from being tried in federal court on at least some of the federal charges. Court watchers said after the argument that the Court did not appear inclined to strike down the separate sovereigns doctrine.

Unanimous Federal Appeals Court Orders New Sentencing for Virginia Death-Row Prisoner

A three-judge panel of the United States Court of Appeals for the Fourth Circuit has unanimously overturned the death sentence imposed on Virginia death-row prisoner Mark E. Lawlor in 2011, ruling that the trial court had unconstitutionally prevented Lawlor from presenting expert mental health testimony that he posed a low risk of violence in prison if the jury spared his life. On November 27, 2018, the court reversed a decision of a Virginia federal district court that had upheld Lawlor’s conviction and sentence, ordering that he be granted a new sentencing hearing.

At trial, the judge prevented Lawlor’s defense team from calling a clinical psychologist—an expert in prison risk assessment and adaptation—who would have testified that Lawlor posed a very low risk of committing future acts of violence in prison. The testimony was offered both as mitigating evidence to support a sentence of life without parole and to rebut the prosecution’s aggravating circumstance that Lawlor “would constitute a continuing serious threat to society.” Writing for the unanimous court, Judge Stephanie D. Thacker said the state courts had disregarded clearly established U.S. Supreme Court law requiring that a capital defendant must be permitted to present and the sentencer must be permitted to consider “any admissible mitigating information in determining whether to assign the defendant a sentence less than death.” The court referenced the 1986 U.S. Supreme Court decision in Skipper v. South Carolina which specifically applied that constitutional requirement to evidence of post-arrest good conduct in prison.

In the mid-1990s, Virginia was one of only three states that offered juries a choice of sentencing a capital defendant to life without parole or death, but refused to inform the jury that a life sentence meant no possibility of parole. Death sentences dropped dramatically in Virginia after juries were truthfully instructed on their sentencing options. David Bruck, Clinical Professor of Law and Director of Virginia Capital Case Clearinghouse at Washington & Lee—who argued several of the U.S. Supreme Court cases requiring that juries be told about the life-without-parole option—said, “Virginia excludes evidence that every other death penalty state allows juries to have, so it’s not surprising that sooner or later the Virginia rule was going to be struck down by the federal courts. It’s always been illogical that the Virginia courts have restricted the evidence that juries can consider about whether an inmate would be nonviolent and well-behaved if sentenced to life without parole.”

Edward Ungvarsky, one of the lawyers who represented Lawlor, said Lawlor and his defense team were “grateful for the ruling. We thought there was nothing more important for jurors in making the decision about life in prison than to hear [whether] the person would be violent in prison. This court’s ruling brings Virginia into agreement with the entire rest of the country.” Lawlor was one of three men on Virginia’s death row, and his 2011 death sentence was the last one imposed in the state.

A Veterans Day Review: Recent Cases Highlight Concerns About Veterans and the Death Penalty

As Americans become increasingly aware of the role of combat trauma in the development of Post-Traumatic Stress Disorder (PTSD) and other mental health disorders, the shift in public perceptions towards veterans suffering from these disorders has played out in the courts in recent death penalty cases. In 2018, at least four military veterans facing death sentences have instead been sentenced to life in prison, and another two veterans won relief in their death-penalty cases. One military veteran has been executed so far this year.

In January, retired Marine Corps Lieutenant General John Castellaw (pictured) wrote in support of exempting mentally ill veterans from capital punishment, saying, "we can do better at recognizing the invisible wounds that some of our veterans still carry while ensuring they get the treatment that they deserve and that we owe them for their sacrifice. ...[W]e can do better by staying tough on crime but becoming smarter on sentencing those whose actions are impacted by severe mental illness." Prosecutors and juries in Indiana, Florida, Colorado, and Virginia have considered the military service and service-related disorders of murder defendants and determined that life sentences were more appropriate than the death penalty. In the Virginia trial of Iraq war veteran Ronald Hamilton, his attorneys presented evidence that he had been a model soldier who had saved the life of a fellow serviceman, but faced PTSD-related disorders and a deteriorating family life when he returned home. At Glen Law Galloway's trial in Colorado, Denver public defender Daniel King presented four days of testimony about Galloway’s character and background, including how the former Army veteran “snapped” following the collapse of his relationship with his girlfriend. King argued, “Mr. Galloway is not just the worst thing that he’s done. He’s committed many acts of kindness, friendship, service, love and duty.” In May, prosecutors withdrew the death penalty in exchange for guilty pleas in two unrelated cases involving military veterans Darren Vann in Indiana and Esteban Santiago in Florida. Santiago faced federal charges for a mass shooting, but prosecutors agreed to a plea deal because Santiago, an Iraq war veteran, suffers from schizophrenia and auditory hallucinations, had unsuccessfully sought treatment and assistance from the Veterans Administration, and had been committed to a mental hospital because of the seriousness of his mental illness.

Two death-sentenced prisoners were granted relief this year as a result of failures by their defense counsel to investigate and present mitigating evidence related to their military service and their service-related mental health disorders. Andrew Witt, an air force veteran who had been on U.S. military death row, received a life sentence after a court found his attorneys ineffective for failing to present mitigating evidence that he had suffered a traumatic brain injury. Robert Fisher's death sentence was reversed by a Pennsylvania federal court in part because his lawyer did not investigate or present evidence related to his service in Vietnam. Fisher was a Purple Heart recipient who struggled with brain damage, drug abuse, and mental health problems after his service.

On July 18, Ohio executed Robert Van Hook, an honorably discharged veteran who was suffering from long-term effects of physical and sexual abuse as a child and untreated mental health issues at the time of the offense. Van Hook had been unable to obtain care for his mental health and addiction issues from veterans service agencies after his discharge.

A 2015 report by the Death Penalty Information Center, Battle Scars: Military Veterans and the Death Penalty, estimated that approximately 300 veterans are on death row across the United States, many suffering from mental illness caused or exacerbated by their military service.

Split Jury Spares Iraq-War Vet in High Profile Virginia Capital Case

A Virginia jury has spared the life of Iraq war veteran Ronald Hamilton (pictured, right, with his father) in the 2016 killings of his wife and a rookie police officer. The jury split 6-6 on whether to impose the death penalty for Hamilton's murder of his wife, Crystal Hamilton, but unanimously agreed to impose a life sentence for the death of Officer Ashley Guindon, who was killed while she responded to Crystal Hamilton's 911 call. Under Virginia law, the court must impose a life sentence if any of the jurors vote for life. At the sentencing phase of the trial, Hamilton's lawyers presented evidence of his possible posttraumatic stress disorder from two tours of duty in Iraq, emphasized his development into a model soldier who, as an Army sergeant, saved a colleague's life while they were under mortar fire, and presented testimony from his father, Ronald W. Hamilton, and other family members. During his testimony, the elder Ronald Hamilton—a retired police officer whose career included service at the White House and who served as the second-in-command of the Charleston, South Carolina police force—expressed his sympathy to the family of Officer Guindon and to the two other officers who were wounded. "I see the prosecutor’s side and defense side, and I can sit on either side. I feel the pain. I understand the duty," Hamilton testified. "If anyone in this courtroom had their relative sitting where my son was, they’d be asking for mercy," he said. As is often the case in capital trials of war veterans, the prosecution had attempted to convert Hamilton's military service into an aggravating factor, repeatedly referring to him as "depraved" and "dangerous." Prosecutor Richard Conway told the jury that soldiers "deserve respect and deserve protection, but they don't get a pass for capital murder," while his co-counsel, Matthew Lowery urged the jury to "[p]ut him in the grave because that's what he deserves."

No Virginia jury has imposed a death sentence since 2011 and Hamilton had offered to plead guilty in exchange for a sentence of life without parole. However, Prince William County Commonwealth's Attorney Paul Ebert – known for his frequent use of the death penalty – rejected the offer. The county is responsible for more executions since 1976 than any other county in the Commonwealth and is among the 2% of counties that account for a majority of all executions in the United States in that period.

Virginia Death-Row Prisoners Win “Landmark” Prison Conditions Lawsuit

In what lawyers for Virginia death-row prisoners have called “a landmark ruling,” a federal judge has issued an injunction barring the Commonwealth from subjecting prisoners who have been sentenced to death to automatic solitary confinement, physical isolation from visitors and other prisoners, and other harsh conditions. In a decision issued on February 21, Judge Leonie M. Brinkema wrote that the conditions to which Virginia subjected death-row prisoners before instituting reforms in 2015 violated the Eighth Amendment proscription against cruel and unusual punishments. Virginia had refused to commit to keeping the reforms, which it adopted only after the prisoners initiated suit, and the court's order prevents the state from reverting to the prior unconstitutional conditions. Before 2015, death sentenced prisoners spent about 23 hours a day alone in a 71-square-foot prison cell and were separated from visitors—including family members—by a plexiglass wall, although the warden had discretion to permit contact visits with family. For one hour a day, five days a week, prisoners were taken to a small “outdoor cell” with a concrete floor and no exercise equipment. Death-row prisoners were barred from the recreational facilities used by prisoners in the general population and allowed to shower only three times per week. Brinkema decided in favor of the three remaining death-row prisoners who had sued the state in 2014. While the suit was pending, one of the orginal plaintiffs, Ricky Gray, was executed and another, Ivan Teleguz, was granted a commutation. Lawyers for the prisoners said Brinkema's decision was the first time a court had ruled such conditions unconstitutional. In granting the prisoners' petition, the court said that “the rapidly evolving information available about the potential harmful effects of solitary confinement” set this case apart from prior prison-conditions lawsuits, and as a result the prior “decades-old determinations” by the Supreme Court and federal appeals court upholding death-row prison conditions were not binding. “As courts and corrections officers across the country have begun to realize, the years-long isolation that the pre-2015 conditions of confinement forced on plaintiffs created, at the least, a significant risk of substantial psychological and emotional harm,” Brinkema wrote. Kathryn Ali, one of the lawyers for the prisoners, said “[t]he law in this area is very bad but it's also very old. ... Judge Brinkema's ruling is a landmark ruling but i think its also just common sense, that we shouldn't be torturing people by keeping them in isolation.” Victor M. Glasberg, who filed the lawsuit on behalf of the five original plaintiffs in 2014, said the court's decision could have implications for prison-conditions lawsuits in other states. “This opinion should serve as a snowball let loose at the top of a snowy mountain, to turn into an avalanche as advocates in other states bring similar suits to end what has become increasingly recognized as untenable conditions in which to hold human beings,” he said. Under the reforms Virginia implemented in 2015, death-row prisoners are permitted to have contact visits with family members one day per week, for up to an hour and a half, as well as non-contact visits on holidays and weekends. They now have access to a covered outdoor yard for up to an hour and a half per day, five days a week. The yard has a basketball court and exercise equipment, which up to four prisoners at a time may share. Virginia now also permits daily one-hour access for up to four prisoners at a time to an indoor recreation space that has games, music, and a television. Death-row prisoners also are now permitted to shower daily.

Virginia Governor Commutes Death Sentence of Mentally Incompetent Death-Row Prisoner

Virginia Governor Terry McAuliffe commuted the sentence of mentally incompetent death-row prisoner William Joseph Burns (pictured) on December 29, 2017, after multiple mental-health experts said Burns was unlikely to regain sufficient competency for his death sentence to ever be carried out. Burns, whose sentence was converted to life in prison without the possibility of parole, became the fifth death-row prisoner to have been granted clemency in the United States in 2017. Burns was convicted and sentenced to death for the 1998 rape and murder of his mother-in-law. Showing signs of severe mental illness, Burns was found incompetent to stand trial in 1999, delaying his trial for a year. At trial, his lawyers presented mitigating evidence that Burns had mental retardation (now known as intellectual disability), but the jury returned a death verdict. The Virginia Supreme Court upheld the conviction and sentence in 2001, but in 2002, the U.S. Supreme Court declared that the use of the death penalty against people with mental retardation violated the Eighth Amendment. In 2005, the Virginia Supreme Court ruled that Burns had presented sufficient evidence of intellectual disability to warrant a trial on that issue. However, Burns exhibited continuing signs of severe mental illness and a court-appointed mental-health expert determined that he was actively psychotic, spawning more than a decade of litigation over his competency to stand trial. In issuing the commutation, McAuliffe wrote that the “continued pursuit of the execution of Mr. Burns, both as a matter of constitutional principle and legal practicality, cannot be justified.” McAuliffe noted that Virginia has already spent more than $350,000 in "treating, transferring, monitoring, and litigating whether Mr. Burns has the mental competence to conduct a trial on whether he has the intellectual capacity to be executed" and mental-health experts "have confirmed that Mr. Burns is not likely to be restored to competence. ... As of now," the Governor said, "there is no lawful way to impose the death sentence on Mr. Burns, and there is no clear path for that ever being possible." The commutation, McAuliffe said, "brings finality to these legal proceedings; it assures the victim’s family that Mr. Burns will never again enjoy freedom, but without the torment of post-trial litigation; and it allows the Commonwealth to devote its resources towards other cases. In my view, this is the only just and reasonable course." Virginia governors have commuted ten death sentences since the Commonwealth reinstated its death penalty in October 1975. In 2000, following DNA testing that proved his innocence, Governor Jim Gillmore granted an absolute pardon to Earl Washington. Most recently, Governor McAuliffe commuted the death sentence of Ivan Teleguz five days before his scheduled April 25, 2017 execution, noting that the prosecution's use of false evidence to influence the jury's sentencing determination resulted in a death verdict that “was terribly flawed and unfair.”

Ex-Virginia Death-Row Prisoner With Strong Claim of Innocence Get Parole After 38 Years

Joseph M. Giarratano (pictured), a former Virginia death-row prisoner who came within two days of execution, has been been granted parole after 38 years in jail for a rape and double murder that lawyers and supporters have long said he did not commit. On November 20, twenty-six years after Governor L. Douglas Wilder commuted Giarratano's death sentence to life, the Virginia State Parole Board voted to grant him parole. Giarratano was convicted and sentenced to death in Norfolk, Virginia in 1979 for the rape and capital murder of a fifteen-year-old girl and the murder of her mother. Giarratano had lived in their apartment—which was known as a "party house" with a free flow of visitors—in the month before the murder and was there the night of the murders, but because of drug use, he says, he has no recollection of what happened. He said he woke up on the couch, discovered the bodies, and because no one else was in the apartment, he assumed he had committed the killings. He fled to Florida, where he turned himself in to a sheriff at a Jacksonville bus station and confessed to the murders. Over the course of time, Giarratano gave a total of five confessions, which were inconsistent with one another and conflicted with the evidence at the crime scene. Footprints, fingerprints, and pubic hairs were recovered at the crime scene and did not match either Giarratano or the victims. Experts indicated that the killer was right-handed, but Giarratano is left-handed. Giarratano's confessions were so inconsistent that detectives told him they did not believe him and, he said, provided him with detailed information that he then parroted back to them in his fifth confession. Gerald Zerkin, one of Giarratano’s lawyers, said "[t]here is nothing in the physical evidence that links Joe to the murders.... The prosecution’s whole case hinged on Joe’s confessions, which were total nonsense.” Leading experts on false confessions concluded in 2001 that there was "not a shred of significant or credible physical evidence supporting the conclusion that Joseph Giarratano’s contradictory and inconsistent confessions are reliable" and that considerable evidence led to "the conclusion that his confessions are false." While on death row, Giarratano became an avid reader and an advocate for other condemned prisoners, assisting in the exoneration of Earl Washington, a wrongfully convicted intellectually disabled man who came within eight days of execution. Giarranto was also the named party in a U.S. Supreme Court case, Murray v. Giarratano, in which Giarratano and others challenged Virginia's failure to provide post-conviction attorneys for condemned prisoners. The Court ruled 5-4 against the prisoners. Following his transfer off death row to the Augusta Correctional Center, Giarratano helped found the Center for Teaching Peace, a peace education program for prisoners. The state parole board's decision marks the first time in modern Virginia history that a defendant whose death sentence was commuted was granted parole. Richmond lawyer Stephen A. Northup represented Giarratano before the parole board and said, “For all the reasons that caused Governor Wilder to give Joe a conditional pardon more than 26 years ago, I believe Joe is innocent of the crimes for which he was convicted.”

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