Former Virginia attor­neys gen­er­al Mark L. Earley Sr. (pic­tured) and Anthony F. Troy recent­ly called for changes to the state’s death penal­ty based on a September report from the American Bar Association. Writing in the Washington Post, the past law enforce­ment lead­ers called for changes to the restric­tive laws gov­ern­ing the shar­ing of evi­dence pri­or to tri­als, amend­ments to jury instruc­tions so that jurors in death cas­es could bet­ter under­stand their respon­si­bil­i­ties, and the eas­ing of restric­tions on DNA test­ing. The op-ed not­ed, ​“As for­mer attor­neys gen­er­al of Virginia, we come from dif­fer­ent polit­i­cal par­ties but are firm­ly unit­ed on an issue impor­tant to all Virginians: If the com­mon­wealth is going to have the death penal­ty, it needs to get it right. It must ensure that its pro­ce­dures — from arrest to exe­cu­tion — are fair, and it must min­i­mize the risk of exe­cut­ing an inno­cent per­son.” Read full op-ed below.

Fail-safes for Virginia’s death penalty

As for­mer attor­neys gen­er­al of Virginia, we come from dif­fer­ent polit­i­cal par­ties but are firm­ly unit­ed on an issue impor­tant to all Virginians: If the com­mon­wealth is going to have the death penal­ty, it needs to get it right. It must ensure that its pro­ce­dures — from arrest to exe­cu­tion — are fair, and it must min­i­mize the risk of exe­cut­ing an innocent person.

We now have exten­sive evi­dence doc­u­ment­ing the need for mod­est but vital­ly impor­tant changes to Virginia’s death penal­ty process. A team of Virginia legal experts, assem­bled by the American Bar Association, recent­ly released a 400-page report detail­ing the chal­lenges faced by the com­mon­wealth in ensur­ing fair­ness and accu­ra­cy in death penal­ty cas­es. The team, which includes three for­mer or cur­rent pros­e­cu­tors, a for­mer cir­cuit court judge and two cap­i­tal defense lawyers — iden­ti­fied a num­ber of ways in which Virginia’s death penal­ty is out of step with mod­ern foren­sic and social sci­ences and areas where the commonwealth’s prac­tices are out of step with those of other states.

Unlike many reviews of cap­i­tal pun­ish­ment in the United States, this group’s charge was not to deter­mine whether the com­mon­wealth should have a death penal­ty. Instead, its oper­at­ing posi­tion was that as long as Virginia has a death penal­ty, it must be reserved for a nar­row cat­e­go­ry of the worst offend­ers and offens­es, ensure height­ened due process and min­i­mize the risk of exe­cut­ing the inno­cent. We could not agree more.

The report sets out a sober, detailed expla­na­tion of the system’s short­com­ings. Virginia has one of the most restric­tive laws gov­ern­ing dis­cov­ery of evi­dence in crim­i­nal tri­als — includ­ing death penal­ty cas­es. Discovery rules gov­ern­ing auto­mo­bile acci­dent cas­es in the com­mon­wealth offer far more infor­ma­tion than those for a defen­dant fac­ing cap­i­tal pun­ish­ment. Such a sys­tem not only fails the fair­ness test but also makes exten­sive post-tri­al lit­i­ga­tion, rever­sals and retri­als much more like­ly. Indeed, two peo­ple con­vict­ed of cap­i­tal mur­der more than a decade ago in Virginia — Michael Hash and Justin Wolfe — recent­ly had their con­vic­tions reversed by fed­er­al courts because of withheld evidence.

The research team also found that many jurors who have served on cap­i­tal cas­es in the state mis­un­der­stood the instruc­tions pro­vid­ed to them in delib­er­at­ing on whether a defen­dant should be sen­tenced to death. An alarm­ing 53 per­cent of sur­veyed jurors believed the death penal­ty was required if they found that the mur­der was heinous, vile or depraved, and 41 per­cent believed that death was required if they thought the defen­dant would be dan­ger­ous in the future. As a mat­ter of law, how­ev­er, the death penal­ty can nev­er be manda­to­ry. Virginia’s cap­i­tal jury instruc­tions must be amend­ed to ensure that jurors under­stand their roles and respon­si­bil­i­ties in under­tak­ing the awe­some respon­si­bil­i­ty of deter­min­ing whether anoth­er per­son should live or die.

The team also found that Virginia erects one of the high­est bur­dens in the coun­try to obtain­ing post-con­vic­tion DNA test­ing and impos­es sig­nif­i­cant lim­i­ta­tions on courts’ abil­i­ty to review claims of error. These restric­tions empha­size final­i­ty over fair­ness — an improp­er bal­ance when we also know that more than 30 peo­ple have been exon­er­at­ed in Virginia since 1989, includ­ing three cas­es in which the com­mon­wealth sought the death penalty.

The report also rec­og­nizes progress that has been made. Over the past decade, Virginia has imple­ment­ed a pub­lic defend­er sys­tem that employs lawyers who spe­cial­ize in death penal­ty cas­es to rep­re­sent cap­i­tal defen­dants. Since the guid­ing hand of skilled coun­sel can dra­mat­i­cal­ly improve the fair­ness of death penal­ty pro­ceed­ings, this is a tremen­dous step in the right direc­tion. In addi­tion, the com­mon­wealth has attract­ed some of the best foren­sic sci­en­tists in the coun­try. The impar­tial­i­ty and reli­a­bil­i­ty of Virginia’s foren­sic sci­en­tists are vital­ly impor­tant when life and lib­er­ty are at risk.

These pos­i­tive fac­tors should not shield the numer­ous oth­er areas of con­cern from review, dis­cus­sion and reform. The team’s report has been deliv­ered to state lead­ers. We encour­age them to act imme­di­ate­ly to pro­tect the integri­ty of our sys­tem, par­tic­u­lar­ly when lives are at stake.

Mark L. Earley Sr., a Republican, was Virginia’s attor­ney gen­er­al from 1997 to 2001. He served on the ABA’s Virginia Death Penalty Assessment Team. Anthony F. Troy, a Democrat, was Virginia’s attor­ney gen­er­al from 1977 to 1978 and is a for­mer chair­man of the Virginia Capital Resource Representation Center.

(M. Earley Sr. & A. Troy, ​“Fail-safes for Virginia’s death penal­ty,” Washington Post, (op-ed) October 4, 2013). Read New Voices and Studies about the death penalty.

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