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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