Virginia

Virginia

Death-Penalty Repeal Efforts Across U.S. Spurred by Growing Conservative Support

Bills to repeal and replace the death penalty with non-capital punishments have gained new traction across the United States in 2019 as a result of opposition to the death penalty among ideologically conservative legislators. That movement – buoyed by fiscal and pro-life conservatives, conservative law-reform advocates, and the deepening involvement of the Catholic Church in death-penalty abolition – has led to unprecedented successes in numerous houses of state legislatures and moved repeal efforts closer to fruition in a number of deeply Republican states. In 2019, conservative legislators are leading the call for death-penalty abolition in conservative-leaning states such as Wyoming, Montana, and Kentucky, and playing a critical role in bipartisan efforts to repeal or reform capital punishment in Virginia and New Hampshire.

The surprise strength of a death-penalty repeal bill in Wyoming is emblematic of the growing Republican abolition movement. There, in an overwhelmingly Republican legislature, a bill to replace the death penalty with life without parole garnered significant support from both parties and passed the state house and a senate committee before falling short in the full senate. In Kentucky and Montana, Republican legislators have introduced abolition legislation and are attempting to build coalition support, and in Virginia, the Republican-controlled state Senate passed a bill to ban the death penalty for people with severe mental illness. Conservatives have said they oppose capital punishment because of pro-life beliefs, a desire to reduce government spending, and the lack of deterrent effect. In New Hampshire, a bill to abolish the death penalty passed the legislature with bipartisan support, but was vetoed in 2018. The legislature has renewed bipartisan repeal efforts in 2019.

The Wyoming House of Representatives voted (36-21) on February 1 to pass HB 145, a bill to abolish the death penalty. The bill garnered the support of a majority of House Republicans, all the house Democrats who voted, and the chamber’s lone Independent. It then unanimously passed the Republican-controlled Senate Judiciary Committee on February 13, before being defeated in the full Senate by a vote of 12-18. In the Senate, nine Republicans and all three Democrats voted in favor of abolition. The bill was introduced by Republican Rep. Jared Olsen of Cheyenne with Republican and Democratic co-sponsors in both houses. Senate co-sponsor Brian Boner (R – Converse) said, “We have an obligation to have a justice system that is blind and based on facts, and not based on what we wished it was or what it used to be.” Olsen said he was concerned about the number of exonerations from death row. “It is way too much authority to vest in our government, and we get it wrong,” he said. Concerns about costs convinced Sen. Bill Landen (R – Casper) to vote for abolition. "I finally decided that I can't go home and feel good about explaining to people all of those myriad of cuts we've made to the state budget and then defend expenditures like this, which have gone on for years and years and years," he said. Wyoming spends an estimated $750,000 per year on legal costs associated with the death penalty, but has not executed anyone since 1992 nor imposed a death sentence since 2004.

Kentucky House Majority Whip Chad McCoy (R – Nelson) said he hopes to get support for his abolition bill from Catholic legislators who have a moral opposition to the death penalty, as well as fiscal conservatives who see it as a costly, ineffective government program. “When you talk about death penalty, a lot of people immediately want to have a criminal justice angle on it or a morality angle. And mine is purely economics,” he said. Kentucky also rarely uses the death penalty. Its last execution was in 2008 and its last death sentence was in 2014. State Representative Mike Hopkins, R-Missoula, the sponsor of Montana’s bill to replace the death penalty with life in prison without the possibility of parole, told a House committee on February 18 that the state’s death penalty was simply ineffective. The two people sentenced to death in the state have been on death row for thirty years, he said, and “there is no logical measurement that 30 years equals a death sentence. … Regardless of how you feel because of capital punishment, nobody is dying from it.”

Virginia Senate Passes Bill to Bar the Death Penalty for Severely Mentally Ill Offenders

By a vote of 23-17, the Virginia State Senate has approved a bill that, if enacted, would ban capital punishment for defendants with severe mental illness. With the support of all nineteen Democratic senators and four Republicans, the bill passed the GOP-controlled Senate on January 17, 2019. It now moves on to the Commonwealth’s House of Delegates, which is comprised of 51 Republicans and 49 Democrats.  

SB 1137 defines severe mental illness as “active psychotic symptoms that substantially impair a person’s capacity to (i) appreciate the nature, consequences, or wrongfulness of the person’s conduct; (ii) exercise rational judgment in relation to the person’s conduct; or (iii) conform the person’s conduct to the requirements of the law.”However, the bill excludes disorders that are “manifested primarily by repeated criminal conduct or attributable to the acute effects of voluntary use of alcohol or any drug.”Under the proposal, the determination of severe mental illness would be made in the sentencing phase of trial, after the defendant already has been convicted. The jury (or the judge, if the defendant waives the right to a jury trial) would decide if the defendant has proven “by a preponderance of the evidence” that he or she was severely mentally ill at the time of the offense. A defendant found to be severely mentally ill would be sentenced to life without parole. The bill also provides for indigent defendants with mental illness claims to receive assistance from a mental health expert appointed by the court. 

The bill’s sponsor, Sen. Barbara Favola (D – Arlington), called the proposal “a vehicle for us to administer justice in a way that’s humane and, I would say, in a way that reflects the values of Virginians.” Sen. Scott Surovell (D – Fairfax), said the mental illness exemption would have limited impact in Virginia because of the decline in death sentences across the state, but was a necessary mental-health reform. “The reality is we have a broken mental health system in this country,” he said. “We have a broken mental health system in this state. We don’t give it enough money.” Senate Minority Leader Richard Saslaw (D – Fairfax), who called himself “a pretty strong proponent of capital punishment,” supported the bill, saying that, when it comes to defendants who are severely mentally ill, “probably we ought to think twice.”

Virginia is second only to Texas in the number of executions carried out since 1976, but it has had a sharp decline in the use of the death penalty in recent years. No one has been sentenced to death in Virginia since 2011, and just two men remain on the state’s death row. In July 2017, lawyers for William Morva, a seriously mentally ill death-row prisoner suffering from a delusional disorder that his lawyers said left him unable to distinguish his delusions from reality, unsuccessfully sought a commutation from Governor Terry McAuliffe. Previously, Governors James Gilmore and Timothy Kaine commuted the death sentences of Calvin Swann and Percy Walton, citing concerns about serious mental illness. Other states are also considering legislation that would ban the death penalty for seriously mentally ill defendants. In 2017, bills were introduced in seven states, including Virginia, calling for such measures. The American Bar Association in 2016 issued a white paper in support of a mental-illness exemption.

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.

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