Roanoke Times

Del. Vincent F. Callahan Jr., R‑McLean*
op-ed

Virginia needs a mora­to­ri­um on the death penalty

In the past, I have been a strong advo­cate of the death penal­ty. I vot­ed in favor of the resump­tion of cap­i­tal pun­ish­ment in 1977, and I have sup­port­ed addi­tion­al pro­vi­sions expand­ing the cat­e­gories of crim­i­nal actions for which the death penal­ty may be imposed.

However, I have now become one of those who believe that we must take anoth­er look at the death penal­ty. In oth­er words, I have come full cir­cle when it comes to giv­ing states such as Virginia the pow­er to take the life of a human being.

In fact, I’m now propos­ing a 2‑year mora­to­ri­um on executions.

Why do I think it’s time we should take anoth­er look at the death penalty?

In the 1st place, there is insur­mount­able evi­dence that cap­i­tal pun­ish­ment is no deter­rent to mur­der. Even the most ardent advo­cates of keep­ing the death penal­ty have dropped that argument.

But there are oth­er com­pelling rea­sons as well.

In my capac­i­ty as chair­man of the Joint Legislative Audit and Review Commission, the Virginia Legislature’s watch­dog agency, I ini­ti­at­ed a study on the appli­ca­tion of cap­i­tal pun­ish­ment through­out the state.

The JLARC study con­clud­ed that, more than any oth­er fac­tor, geo­graph­i­cal loca­tion with­in the com­mon­wealth was most strong­ly asso­ci­at­ed with the deci­sion by the com­mon­wealth’s attor­neys to seek the death penalty.

The study not­ed that ​“the over­all rate at which local pros­e­cu­tors in high-den­si­ty juris­dic­tions sought the death penal­ty in cap­i­tal-eli­gi­ble cas­es was 200 per­cent low­er than was observed in medium-density localities.

“Thus a key ques­tion for this study was whether the fac­tors which appear to be asso­ci­at­ed with the deci­sion of com­mon­wealth’s attor­neys to seek the death penal­ty in cap­i­tal mur­der are relat­ed to the specifics of the case (such as type of crime, or nature of the evi­dence), exter­nal to the case (such as type of local­i­ty), or extra-legal (such as the defendant’s race).”

In oth­er words, a mur­der­er is twice as like­ly to face a death sen­tence in a rur­al set­ting than if the same act were com­mit­ted in a city.

I found the fact that the impo­si­tion of the death penal­ty depends on where in the com­mon­wealth a crime was com­mit­ted profoundly troubling.

The JLARC study also address­es the state’s ​“21-day rule.” That rule, com­mon to both civ­il and crim­i­nal mat­ters in Virginia, requires any par­ty seek­ing review of a tri­al court deci­sion to do so with­in 21 days of the date of entry of the final judg­ment, or sentence.

After that, you are out of luck.

The rule itself has mer­it. It is impor­tant that judg­ments be final, and that cas­es do not continue forever.

The prob­lem aris­es when the desire for final­i­ty over­rides the need for accu­ra­cy. In the crim­i­nal con­text, at present, an indi­vid­ual may be sen­tenced to death, and remain sub­ject to that sen­tence, if an ali­bi wit­ness con­clu­sive­ly able to excul­pate a defen­dant is locat­ed 22 days after that per­son­’s final sentence.

Many juris­dic­tions con­tin­ue to impose time lim­its on the rein­tro­duc­tion of new evi­dence. However, Virginia’s 21-day rule lim­i­ta­tion is the short­est in the United States.

The JLARC report also notes that, in Virginia, as in many oth­er states, there remain long-stand­ing ques­tions con­cern­ing the qual­i­ty of legal rep­re­sen­ta­tion afford­ed indi­gents who are charged with capital murder.

The ade­qua­cy of legal rep­re­sen­ta­tion remains a seri­ous issue, and will in all like­li­hood remain so, giv­en the woe­ful­ly inad­e­quate com­pen­sa­tion paid to court-appoint­ed lawyers in the com­mon­wealth, and the almost uni­ver­sal lack of funds for inves­tiga­tive and oth­er support services.

In con­trast, oth­er states, such as Washington state, pro­vide pub­lic defend­ers’ offices with the same fund­ing for defense lawyers and inves­ti­ga­tors as for the pros­e­cu­tors. The defen­dant at least has a fight­ing chance to get rea­son­able rep­re­sen­ta­tion and rea­son­able investigative support.

Public sen­ti­ment in Virginia appears to still favor the death penal­ty. Politicians lis­ten to pollsters.

However, I believe it is time for a new dia­logue on the death penal­ty. New sci­en­tif­ic evi­dence, such as DNA test­ing, has rev­o­lu­tion­ized all areas of crime detec­tion, crim­i­nal pros­e­cu­tion and criminal defense.

It is time to take a fresh look at how, and when, Virginia — now 2nd only to Texas in the num­ber of exe­cu­tions — impos­es the death penalty.

It is time to look care­ful­ly at the means by which peo­ple who are incar­cer­at­ed wrong­ful­ly might have their sen­tences reviewed, based on new­ly discovered evidence.

A mora­to­ri­um on exe­cu­tions for 2 years would allow for that dia­logue to begin. Those now await­ing exe­cu­tion would not have their sen­tences vacat­ed or oth­er­wise set aside. Those now await­ing tri­al would still be sub­ject to the death penal­ty as at present. I do not have any pre­con­ceived ideas about what, if any­thing, should be done specif­i­cal­ly to ​“fix” our cur­rent sys­tem. However, I have come to believe that our cur­rent sys­tem is not working.

I believe that elect­ed offi­cials and the pub­lic will come to the same con­clu­sion once they review recent stud­ies and evidence.

A mora­to­ri­um on the death penal­ty will give elect­ed offi­cials and the gen­er­al pub­lic the chance to take a hard look at the evi­dence to see whether the death penal­ty is serv­ing its purpose. 

*Virginia Del. Vincent F. Callahan Jr., R‑McLean, rep­re­sents the 34th House of Delegates District and chairs the House Appropriations Committee