A recent editorial in The Virginian-Pilot points to the problem of arbitrariness in applying the death penalty. The editorial asks, “Is it right to look at who the victims were? Is it fair to consider the strength of the evidence and the time and resources required to pursue the death penalty, a costly process? Does it make a crime less important, a victim’s life less memorable, if prosecutors decide that life in a tiny prison cell is punishment enough for the killer?”

The editorial continues, “Even if we assumed that all those convicted are guilty - and in many states, including Virginia, that hasn’t been the case - deciding whether to pursue an execution is a judgment call. Sometimes, whether a defendant is sentenced to die depends on how well his attorney represented him. Sometimes, it depends on how much publicity the crime received. Sometimes, it depends on race.”

In place of an arbitrarily applied death penalty, the editorial concludes that life in prison without parole is a satisfactory alternative, and should be the choice Virginia makes.

The complete editorial may be read below:

Imperfections abound with death penalty

The legal decision facing Harvey Bryant - and every other chief prosecutor weighing whether to pursue the death penalty in a murder case - cannot be made in a vacuum when the choice is fraught with moral, political and practical ramifications.

In the 2006 murder at Hilltop Shopping Center, for example, Bryant, Virginia Beach’s commonwealth’s attorney, had to consider not just whether the crime met the 15 legal criteria for a death case. He also looked at the strength of the case (no eyewitness, but strong circumstantial evidence). He considered the heinousness (the killer had shot his victim in the back as she tried to escape) and the number of victims (one). He listened to the wishes of the victim’s family (one wanted death).

Bryant’s decision to forgo the death penalty against Christopher Hagans - guaranteeing with Hagans’ guilty plea that he spends the rest of his life in prison without possibility of parole - was the right call. He told The Pilot’s Duane Bourne that last month’s plea agreement brought some finality to Elisabeth Kelly Reilly’s family. And it greatly lessens the chance of extensive, costly, time-consuming appeals.

These are gut-wrenching decisions. Bryant acknowledges that. But they’re also arbitrary. In another case recently in court - Marcus Garrett, convicted of killing three people at an Oceanfront condominium in 2005 - Bryant sought the death penalty.

That choice was much easier, he said. Three murder victims, not one. Garrett methodically shot five people, two of them mothers. A judge ultimately sentenced Garrett last month to life in prison, but the questions remain:

Is it fair to weigh how many people died? Is it right to look at who the victims were? Is it fair to consider the strength of the evidence and the time and resources required to pursue the death penalty, a costly process? Does it make a crime less important, a victim’s life less memorable, if prosecutors decide that life in a tiny prison cell is punishment enough for the killer?

The shortcomings of this justice system are numerous and obvious. Even if we assumed that all those convicted are guilty - and in many states, including Virginia, that hasn’t been the case - deciding whether to pursue an execution is a judgment call. Sometimes, whether a defendant is sentenced to die depends on how well his attorney represented him. Sometimes, it depends on how much publicity the crime received. Sometimes, it depends on race.

As Elisabeth Reilly’s mother wisely pointed out, killing Hagans can’t change what happened, and it wouldn’t make it right. Only two things might have helped her feel better: erasing her daughter’s agony and that of her family - which no punishment can do - and knowing the state would never give the man a chance to hurt anyone again.

Virginia has that option. Bryant exercised it in accepting Hagans’ guilty plea. He’s going to prison for the rest of his life. That’s enough for Reilly’s mother. It should be enough for the rest of us, too.

(“Imperfections Abound with the Death Penalty,” The Virginian-Pilot, November 7, 2008). See Arbritrariness, Victims, and Editorials.


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