DPIC News

Bipartisan Effort to Abolish Death Penalty Gains Momentum in Washington

With the backing of the state's governor and attorney general, Democratic and Republican sponsors of a bill to repeal Washington's capital-punishment statute have expressed optimism that the state may abolish the death penalty in 2018. In 2017, Attorney General Bob Ferguson, a Democrat, was joined by former Attorney General Rob McKenna, a Republican, in calling on the legislature to end the state's death penalty. Ferguson, who has said "[t]here is no role for capital punishment in a fair, equitable and humane justice system," is pressing legislators to take up the bill this year. Governor Jay Inslee featured the bill in his January 9, 2018 State of the State address, urging legislators to "leave a legacy that upholds the equal application of justice by passing a bill to end the death penalty in the state of Washington." The bill, now numbered SB 6052, has bipartisan backing: two of its sponsors in each house are Republicans. And Senator Jamie Pedersen (D-Seattle), the chair of the Senate Law and Justice Committee, to which the bill has been referred, said "[t]he stars may be aligning now for support of doing away with the death penalty." Both Republican sponsors in the Senate have questioned the value of the death penalty for murder victims' families and stressed that capital punishment runs counter to conservative values. Sen. Mark Miloscia (R-Milton) wrote in a recent op-ed, "many murder victims’ families oppose capital punishment because it’s little more than a long, re-traumatizing process that doesn’t give them the justice that they deserve." He said continuing with the death penalty is unjustifiable given its failure to contribute to public safety, its high cost, and the "ever-present risk of killing an innocent person." Sen. Maureen Walsh (R-Walla Walla) said, "The death penalty isn’t really accomplishing a wonderful relief to [victims'] families." The repeal bill was stalled in 2017 when Senator Mike Padden, the former judiciary committee chairman, refused to hold hearings on the bill. When Democrats gained control of the state senate after the November 2017 elections, Pederson replaced Padden, paving the way for committee action on the bill. “The votes are there,” Attorney General Ferguson said. “I’m reasonably optimistic that this could be the year.” Miloscia said he, too, is “highly optimistic .... I think this is something that people on both sides of the aisle want to get done.” Washington has a similar profile to other states that have recently abolished the death penalty. Its murder rate is significantly below the national average and, as with most of the states that have done away with capital punishment, it has a very low rate of murders of police officers. The high cost of the death penalty is also a factor for legislators. According to a 2015 Seattle University study, each death-penalty prosecution cost an average of $1 million more than a similar case in which the death penalty was not sought. In an email to the Washington Newspaper Publishers Association, Senator Walsh said "taxpayers foot the multi-million dollar appeals process for the accused and we spend $50,000/year for incarceration. ... A life sentence with no chance of early release saves money and issues the ultimate punishment by denying the convicted their freedom and liberties for life.” Washington has not carried out an execution since 2010, and Governor Inslee—who imposed a moratorium on executions in February 2014—has said he will not allow executions to take place while he is in office.

The Reverend Dr. Martin Luther King, Jr.: "Hate cannot drive out hate; only love can do that."

On Martin Luther King Day, DPIC looks at the Reverend Dr. Martin Luther King's views on the death penalty. Dr. King's philosophy of non-violence had no room for capital punishment. In one of his most famous sermons, "Loving Your Enemies," Dr. King preached: "Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that." In 1952, Jeremiah Reeves, a 16-year-old African-American Montgomery, Alabama high school student was arrested for allegedly raping a white woman with whom he was having an affair. The teen was interrogated for two days, deprived of sleep, strapped into an electric chair, and told the only way to escape the death penalty was to confess. He did so, then recanted. The trial judge barred the defense from telling the all-white jury the circumstances of the "confession," and Reeves was sentenced to death. Six years later, Alabama executed him. On Easter Sunday 1958, nine days after the execution, Dr. King preached to a crowd of 2,000 on the steps of the state capitol about the "tragic and unsavory injustice." Dr. King said: "A young man, Jeremiah Reeves, who was little more than a child when he was first arrested, died in the electric chair for the charge of rape. Whether or not he was guilty of this crime is a question that none of us can answer. But the issue before us now is not the innocence or guilt of Jeremiah Reeves. Even if he were guilty, it is the severity and inequality of the penalty that constitutes the injustice. Full grown white men committing comparable crimes against Negro girls are rare ever punished, and are never given the death penalty or even a life sentence." Dr. King continued: "But not only are we here to repent for the sin committed against Jeremiah Reeves, but we are also here to repent for the constant miscarriage of justice that we confront everyday in our courts. The death of Jeremiah Reeves is only the precipitating factor for our protest, not the causal factor. The causal factor lies deep down in the dark and dreary past of our oppression. The death of Jeremiah Reeves is but one incident, yes a tragic incident, in the long and desolate night of our court injustice. ... Truth may be cruficied and justice buried, but one day they will rise again. We must live and face death if necessary with that hope." According to the Bureau of Justice Statistics, 455 people were executed for rape in the United States between 1930 and the Supreme Court's decision declaring the nation's death penalty statutes unconstitutional in 1972. 405 (89.1%) were black. The use of the death penalty for rape remained almost exclusively a Southern phenomenon: 443 of the executions for rape (97.4%) occurred in former Confederate states. Noting the different punishment of blacks and whites for allegations of interracial rape, Dr. King later wrote in his memoir, Stride Toward Freedom, it was "[f]or good reason the Negroes of the South had learned to fear and mistrust the white man's justice." In a November 1957 interview Ebony asked Dr. King: "Do you think God approves the death penalty for crimes like rape and murder?" He responded, "I do not think that God approves the death penalty for any crime, rape and murder included.... Capital punishment is against the better judgment of modern criminology, and, above all, against the highest expression of love in the nature of God." 

Experience Shows No “Parade of Horribles” Following Abolition of the Death Penalty

States that have recently abolished the death penalty have not experienced the “parade of horribles”—including increased murder rates—predicted by death-penalty proponent, according to death-penalty experts who participated in a panel discussion at the 2017 American Bar Association national meeting in New York City. Instead, the panelists said, abolition appears to have created opportunities to move forward with other broader criminal justice reforms. The transcript of that panel presentation, Life After the Death Penalty: Implications for Retentionist States, which was posted by the ABA on January 3, features discussion of the political factors that contributed to repeal and research into the effects of death-penalty abolition in those states in which repeal has recently occurred. The panel discussion, jointly hosted by the American Bar Association Section of Civil Rights and Social Justice and the New York City Bar Association in August 2017, featured four speakers with backgrounds in death-penalty activism, reform, or research: Thomas P. Sullivan, Co-Chair of the 2000 Commission on Capital Punishment in Illinois; Shari Silberstein, Executive Director of Equal Justice USA; Celeste Fitzgerald,& former Director of New Jerseyans for Alternatives to the Death Penalty; and Robert Dunham, Executive Director of the Death Penalty Information Center. The first three speakers described the circumstances that led to abolition in the six states that legislatively repealed or judicially abolished capital punishment between 2007 and 2014 and explained how abolition sponsors overcame opponents' arguments that, as Fitgerald characterized it, “abolition would bring about a 'parade of horribles.'” Silberstein summarized those worries, saying, “The death penalty proponents' arguments were all the traditional ones you would expect. They talked about the bloodbath that would come if there were no death penalty: murders would spike; the killings of police officers would spike; killings of corrections officers would spike.” Dunham discussed DPIC's research on three decades of murder rates in the U.S., which, he said, shows that abolition of the death penalty had no discernible effect on murder rates in general or murder rates of police and corrections officers killed in the line of duty. Dunham said that if the arguments advanced by death-penalty proponents were factually supported, murder rates in general and the rates at which police and corrections officers were killed should have risen after states abolished the death penalty, both in those states and in comparison to trends in other states. And, Dunham said, “if—as opponents of death-penalty abolition had argued—police officers were especially vulnerable without the death penalty and its repeal would lead to 'open season on police officers,' you'd expect to see not just an increase in the rate at which police officers were killed, but an increase in the number of murders of police officers as a percentage of all homicides.” None of this happened, he said. Instead, murders of law enforcement officers were much lower in the states that recently abolished the death penalty. “[T]he death penalty appears to make no measurable contribution to police safety,” Dunham said. The panelists also observed that repeal of capital punishment had created an opportunity for additional criminal justice reform. Sullivan noted that, prior to repeal, “[a] great deal of time, attention, and effort were spent on the few cases that involved the death penalty in Illinois, while little attention was given to the huge number of people who were convicted and incarcerated for crimes. All that time, attention, and money can now be shifted to reforming the entire Illinois criminal justice system. That would mean that there has been a double benefit from having abolished the death penalty in Illinois.” Silberstein said that in New York, abolition permitted “stakeholders who could not talk to each other in the same way when the death penalty was on the table because [of] differences over the death penalty” to discuss “how best to achieve the key goals of safety and healing [and] work on increasing funding and programs to reduce violence.”

Idaho County Considers Leaving State Defense Fund As Way to Deter Capital Prosecutions

To deter future use of the death penalty in their county, the Blaine County, Idaho County Commissioners on January 2 voted to consider withdrawing from the state's Capital Crimes Defense Fund as a way to choke off state funding in capital prosecutions. “This is a way for our county to say we don’t support the death penalty, and that we don’t want the prosecutor seeking it in Blaine County,” said Commissioner Larry Schoen (pictured), who proposed the withdrawal. Two days later, however, the commissioners backtracked after learning that participation in the fund was a prerequisite for the county to be eligible to receive the services of the State Appellate Defender's office in a wide range of non-capital appeals. The commissioners had believed that, by requiring the county to absorb the entire cost of defending death penalty cases, pulling out of the fund would create a disincentive for local prosecutors to seek the death penalty. At a minimum, Schoen said, “the prosecutor would have to certainly be aware that [a capital prosecution] would be an enormous financial burden on the county.” Blaine County Prosecuting Attorney Jim Thomas, who has not sought the death penalty since assuming office in 2000, strongly opposed the proposal, saying that decisions to seek the death penalty should not be based on cost. “It’s probably the most important, weighty decision that I would make,” he said. “And to think that we would make it on the basis of finances, I think that’s probably what insulted me most, frankly.” After considering a letter from Thomas and reviewing the conditions of Blaine County's agreement with the appellate defender's office—under which the county would lose an estimated $22,000-$25,000 annually in state appellate assistance in non-capital felony cases if it withdrew from the Capital Crimes Defense Fund—the commissioners decided against withdrawing. “My underlying thoughts haven’t changed," Schoen said. “But at this point, there would likely be too many unintended consequences and negative implications involved with not participating.” As a result, he recommended that the county “continue participation in the Capital Crimes Defense Fund, though I hope we can pursue a legislative solution to decouple that from access to the state’s public defenders.” A 2014 study of death-penalty costs in Idaho by the Idaho Legislature’s Office of Performance Evaluations found that the State Appellate Public Defenders office spent 44 times more billable hours on the average death-penalty appeal than on cases in which a life sentence had been imposed. The study also concluded that, on average, capital trials took seven more months to reach a conclusion than non-capital cases. More than half of the 40 people sentenced to death in Idaho since 1977 have had their death sentences overturned on appeal and then received lesser sentences. In November, the commissioners in Ada County—the state’s largest county and the county that most aggressively seeks the death penalty—voted to leave the fund to reduce payments for capital defense services. The commissioners reconsidered that decision after realizing that withdrawal from the fund would make the county responsible for hundreds of thousands of dollars in appellate costs for non-capital cases.

Murder Victims’ Family Members Speak of Moving Forward, Without the Death Penalty 

Family members of murder victims share no single, uniform response to the death penalty, but two recent publications illustrate that a growing number of these families are now advocating against capital punishment. In From Death Into Life, a feature article in the January 8, 2018 print edition of the Jesuit magazine America, Lisa Murtha profiles the stories of how several prominent victim-advocates against the death penalty came to hold those views. And in a recently released compilation of essays, Not in Our Name, nine family members of murder victims share their stories of coping, grieving, and reconciliation in the face of losing a loved one to murder, and tell how their experiences transformed their views about capital punishment. “While each has endured the extreme pain of losing a loved one to murder, they all are staunchly opposed to what they say is more violence in the form of a state-sanctioned execution and a death penalty,” said Ron Steiner, leader of Oregonians for Alternatives to the Death Penalty, which released the essays in November. The death penalty is often characterized as providing justice and closure for family members of the victims. But, Murtha writes, "for many, the death penalty provides neither the closure nor the healing that legal and political systems oftentimes promise. Instead, a growing number of victims’ families are saying it inhibits that healing." Murtha reports on the different reasons offered by five different victims’ families who spoke out against the death penalty in 2016. "One learned how profoundly the murderer had changed in prison, another just wanted the appeals to stop and another discovered that the men originally convicted of the crime were actually innocent," she writes. Murtha also recounts the emotional journeys of Bob Curley, Marietta Jaeger Lane, and Bill Pelke, who are now vocal opponents of the death penalty. After his 10-year-old son Jeffrey was murdered, Curley launched a years-long crusade to reinstate capital punishment in Massachusetts, believing the death penalty might prevent something like this from happening [again].” He came to oppose the death penalty after seeing that the man he believed was less culpable for the death of his son received a harsher sentence and became convinced that "the system is just not fair" and could not be trusted to reach the right result in capital cases. Lane, a lifelong practicing Catholic, said she initially wanted to kill the man who abducted and murdered her 7-year old daughter, but she said, "I surrendered [and] did the only thing I could do, which was [give] God permission to change my heart.” Pelke's 78-year-old grandmother was robbed and murdered by group of teenage girls, and 15-year-old Paula Cooper was sentenced to death. Pelke was convinced his grandmother "would have had love and compassion for Paula Cooper and her family and that she wanted me to have that same sort of love and compassion. I learned the most important lesson of my life .... I didn’t have to see somebody else die in order to bring healing from Nana’s death.”

U.S. Supreme Court Orders Federal Appeals Court to Reconsider Case Involving Racially Biased Juror

The U.S. Supreme Court has directed a federal appeals court to reconsider whether Georgia death-row prisoner Keith Tharpe (pictured) is entitled to federal court review of his claim that he was unconstitutionally sentenced to death because he is black. On January 8, the U.S. Supreme Court issued a 6-3 opinion sending Tharpe's case—in which a racist juror used an offensive slur to describe the defendant and doubted whether African Americans have souls—back to the U.S. Court of Appeals for the Eleventh Circuit for further consideration whether the federal courts should hear his claim of juror bias. Seven years after Tharpe was sentenced to death, his attorneys obtained a sworn affidavit reviewed and initialed by Barney Gattie, a white man who served as a juror at Tharpe's trial. In his statement, Gattie said, "After studying the Bible, I have wondered if black people even have souls," and, "there are two types of black people: 1. Black folks and 2. Ni[**]ers." Gattie also expressed his belief that Tharpe "wasn’t in the ‘good’ black folks category in my book, [and] should get the electric chair for what he did." According to Gattie, the victim was one of the "nice black folks," but "[i]f [the victim] had been the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much." Despite these statements, the Georgia state courts rejected Tharpe’s racial-bias claim after prosecutors obtained a second affidavit from Gattie asserting that he was not a bigot. State prosecutors have not denied that Gattie made these statements, but have attempted to defend them by saying that Gattie had been drinking when he signed the affidavit. The Georgia federal courts had also denied Tharpe relief on the claim, deferring to the fact-finding of the state courts that Gattie's bigoted statements were not prejudicial. However, in 2017, the U.S. Supreme Court decided two major cases that Tharpe said required the federal courts to reconsider his claim:  Buck v. Davis, a Texas death-penalty case in which the racially biased testimony of an expert witness created an unacceptable risk that Buck was sentenced to death because he was black, and Pena-Rodriguez v. Colorado, a case that overturned a state-court rule that prevented defendants from using racially biased statements made by a juror as evidence of juror misconduct during deliberations. Georgia was scheduled to execute Tharpe in September 2017, but the Supreme Court granted him a last-minute stay to decide whether to review his case. The Court ultimately accepted review of the case, issued a per curiam ruling in Tharpe v. Sellers  without further briefing or argument, and returned the case to the Eleventh Circuit, which must now consider whether to issue a Certificate of Appealability—a procedural prerequisite to considering an issue on appeal. Brian Kammer, Tharpe's attorney, said, "We are thankful that the U.S. Supreme Court recognized the serious implications for fundamental fairness of the clear evidence of racial animus on the part of one of the jurors who sentenced Mr. Tharpe to death." Justice Clarence Thomas dissented, joined by Justices Alito and Gorsuch, criticizing the Court for interfering in the case and failing to respect the lower courts' judgments.

Conservative Voices Continue to Call for End of Death Penalty

From October 2016 to October 2017, support for capital punishment among those identifying themselves as Republicans fell by ten percetage points. Two op-eds published towards the end of the year illustrate the growing conservative opposition to the death penalty. Writing in The Seattle Times on December 27, Republican State Senator Mark Miloscia (pictured, l.) called for bipartisan efforts to repeal Washington's death-penalty statute. In a December 13 commentary in the Washington Times, conservative political strategist Richard Viguerie (pictured, r.) describes what he calls the "stunning" surge in Republican sponsorship of bills to end capital punishment. Setting forth moral and practical reasons for his support of Washington Senate Bill 5354, Miloscia writes that "[i]t is time to pass a strong, bipartisan repeal of the death penalty." Miloscia cites his Catholic pro-life beliefs as the primary reason for his opposition to capital punishment and highlights Pope Francis' calls for an end to the death penalty. He writes, "Given our modern prison system and ability to neutralize individuals as threats without killing them, it is never imperative to execute someone." But beyond religious beliefs alone, Miloscia sees "many practical reasons why conservatives of all faiths are rethinking the death penalty." Among them, he cites the high cost of capital punishment and the "ever-present risk of killing an innocent person," which he says are "even more unjustifiable" given the absence of any valid evidence that executions affect murder rates. Further, he writes, "many murder victims’ families oppose capital punishment because it’s little more than a long, re-traumatizing process that doesn’t give them the justice that they deserve." Miloscia sees a major shift underway in Republican thinking on the issue, paving a path for bipartisan repeal: "Republicans are turning against the death penalty, which means that opposition to capital punishment is no longer a partisan stance. As the death penalty slowly loses its supporting constituency, the punishment’s future becomes doubtful." Conservative leader Richard Viguerie also sees a dramatic change in how conservatives view the death penalty. Viguerie cites a 2017 report by Conservatives Concerned About the Death Penalty, which found a surge in Republican sponsorship of death-penalty abolition bills that Viguerie says "has been gaining momentum." As part of this "massive shift," he writes, one-third of all sponsors of death-penalty repeal bills in 2016 were Republicans. Viguerie writes, "conservatives are recognizing that capital punishment is a broken government program that runs counter to conservatism’s foundational tenets of valuing life, fiscal responsibility and limited government." He, too, points to religion, and Catholicism in particular, as a reason for conservative opposition, but says that the Tea Party movement—with its support of limited government—and the election of younger legislators who are statistically more likely to oppose the death penalty, has contributed to the change. He foresees a continuing decline in conservative support for the death penalty: "As state legislatures undergo their makeovers, the public turns against the death penalty, and political leaders voice their capital punishment concerns, we should expect to see even more from Republican officials. Republicans will likely continue to sponsor repeal bills with increasing frequency and reverse the flawed criminal justice policies once advocated by their ideological predecessors of the 1980s and 1990s."

Retired Lt. General: Exclude Mentally Ill Vets from the Death Penalty

Saying that the death penalty should “be reserved for the ‘worst of the worst in our society,’” retired Marine Corps Lieutenant General John Castellaw (pictured) has urged the Tennessee state legislature to adopt pending legislation that would bar the death penalty for people with severe mental illnesses. In an op-ed in the Memphis newspaper, The Commercial Appeal, General Castellaw writes that the death penalty “should not be prescribed for those with severe mental illnesses, including those people with illnesses connected to their military service.” 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. “[A]s many as 30 percent of the veterans from Vietnam through today’s conflicts suffer from post-traumatic stress disorder (PTSD),” General Castellaw writes, some of whom have not “receive[d] the care they needed and the care our country promised.” The General tells the story of Andrew Brannan, a decorated Vietnam War veteran who was diagnosed with service-related PTSD and bipolar disorder. Brannan was convicted and sentenced to death in Georgia for killing a deputy sheriff during a traffic stop in which he had behaved erratically and had begged the officer to shoot him. Despte no prior criminal record and having a 100 percent disability rating from the Veterans Administration, Georgia executed Brannan. His final words were, “I am proud to have been able to walk point for my comrades, and pray that the same thing does not happen to any of them.” In arguing for a mental-illness exemption from the death penalty, General Castellaw writes, “[a]s Americans, 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. As Tennesseans, we can do better by staying tough on crime but becoming smarter on sentencing those whose actions are impacted by severe mental illness.” The Tennessee legislature is expected to consider Senate Bill 378 and House Bill 345 later this year. A similar bill under consideration in Ohio has recently received the support of the Cleveland Plain Dealer editorial board. In a January 3 editorial, the newspaper called Ohio Senate Bill 40 “common-sense, bipartisan—and humane.” Under both the Tennessee and Ohio proposals, people who commit murder but are found to have one of five severe mental illnesses would face a maximum sentence of life without parole.

Pledging No Death Penalty, Larry Krasner Sworn In As Philadelphia's District Attorney

Saying “[a] movement was sworn in today,” long-time civil-rights lawyer Larry Krasner (pictured)—who pledged to end Philadelphia's use of the death penalty—took the oath of office on January 2 as district attorney in a county that only five years ago had the third largest death row of any county in the country. Krasner's inaugural address put a face on the “[t]ransformational change in criminal justice" he had called for during the election, saying it was time to begin “trading jails—and death row—for schools,” “jail cells occupied by people suffering from addiction for treatment and harm reduction,” and “division between police and the communities they serve for unity and reconciliation.” Krasner's election has drawn national attention, as social-justice activists focus on new strategies to bring about social change. The Los Angeles Times placed Krasner among "a growing list of district attorneys around the country ... who have declared that their role isn’t simply to prosecute, but to protect defendants from the excesses of the criminal justice system." The American Prospect described "[t]he relatively quick swing from a death penalty devotee to a crusading reformer at the helm of a major American city’s DA office [as] both a distillation of a long-brewing shift in the politics of crime—away from the standard tough-on-crime bromides and toward a smarter approach to justice—and emblematic of a new recognition from progressives that electing allies into DA offices could be one of the most effective ways to reform the system from the inside." Since 2015, "reform" prosecutors have been elected to replace prosecutors in counties historically known for their aggressive use of the death penalty, including Harris (Houston), Texas; Duval (Jacksonville), Orange (Orlando), and Hillsborough (Tampa), Florida; Caddo Parish (Shreveport), Louisiana; and Jefferson (Birmingham), Alabama. But Clarise McCants, campaign director for the racial-justice organization, Color of Change, is eyeing upcoming district attorney races in 2018, saying “[t]he small number of [reform-minded] prosecutors we have elected so far is nothing compared to the kind of impact we could have.” Krasner takes the reins of an office most recently headed by Ronald CastilleLynne Abraham, and Seth Williams. Castille served as district attorney from 1986-1991, obtaining 45 death sentences and then participating in appeals in those cases after being elected to the Pennsylvania Supreme Court. Abraham was dubbed “America's Deadliest DA,” obtaining 108 death sentences in her 19 years as district attorney between 1991 and 2009. She was replaced by Williams, who resigned after being convicted in 2017 of corruption charges. Krasner's election culminates two decades of dramatically declining death penalty use in Philadelphia. Death sentences, which averaged 9.9 per year in the 1990s, have fallen to an average of fewer than one per year this decade. 

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.”

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