A three-judge pan­el of the United States Court of Appeals for the Fourth Circuit has unan­i­mous­ly over­turned the death sen­tence imposed on Virginia death-row pris­on­er Mark E. Lawlor in 2011, rul­ing that the tri­al court had uncon­sti­tu­tion­al­ly pre­vent­ed Lawlor from pre­sent­ing expert men­tal health tes­ti­mo­ny that he posed a low risk of vio­lence in prison if the jury spared his life. On November 27, 2018, the court reversed a deci­sion of a Virginia fed­er­al dis­trict court that had upheld Lawlor’s con­vic­tion and sen­tence, order­ing that he be grant­ed a new sentencing hearing.

At tri­al, the judge pre­vent­ed Lawlor’s defense team from call­ing a clin­i­cal psy­chol­o­gist — an expert in prison risk assess­ment and adap­ta­tion — who would have tes­ti­fied that Lawlor posed a very low risk of com­mit­ting future acts of vio­lence in prison. The tes­ti­mo­ny was offered both as mit­i­gat­ing evi­dence to sup­port a sen­tence of life with­out parole and to rebut the prosecution’s aggra­vat­ing cir­cum­stance that Lawlor ​“would con­sti­tute a con­tin­u­ing seri­ous threat to soci­ety.” Writing for the unan­i­mous court, Judge Stephanie D. Thacker said the state courts had dis­re­gard­ed clear­ly estab­lished U.S. Supreme Court law requir­ing that a cap­i­tal defen­dant must be per­mit­ted to present and the sen­tencer must be per­mit­ted to con­sid­er ​“any admis­si­ble mit­i­gat­ing infor­ma­tion in deter­min­ing whether to assign the defen­dant a sen­tence less than death.” The court ref­er­enced the 1986 U.S. Supreme Court deci­sion in Skipper v. South Carolina which specif­i­cal­ly applied that con­sti­tu­tion­al require­ment to evi­dence of post-arrest good con­duct in prison.

In the mid-1990s, Virginia was one of only three states that offered juries a choice of sen­tenc­ing a cap­i­tal defen­dant to life with­out parole or death, but refused to inform the jury that a life sen­tence meant no pos­si­bil­i­ty of parole. Death sen­tences dropped dra­mat­i­cal­ly in Virginia after juries were truth­ful­ly instruct­ed on their sen­tenc­ing options. David Bruck, Clinical Professor of Law and Director of Virginia Capital Case Clearinghouse at Washington & Lee — who argued sev­er­al of the U.S. Supreme Court cas­es requir­ing that juries be told about the life-with­out-parole option — said, ​“Virginia excludes evi­dence that every oth­er death penal­ty state allows juries to have, so it’s not sur­pris­ing that soon­er or lat­er the Virginia rule was going to be struck down by the fed­er­al courts. It’s always been illog­i­cal that the Virginia courts have restrict­ed the evi­dence that juries can con­sid­er about whether an inmate would be non­vi­o­lent and well-behaved if sen­tenced to life without parole.”

Edward Ungvarsky, one of the lawyers who rep­re­sent­ed Lawlor, said Lawlor and his defense team were ​“grate­ful for the rul­ing. We thought there was noth­ing more impor­tant for jurors in mak­ing the deci­sion about life in prison than to hear [whether] the per­son would be vio­lent in prison. This court’s rul­ing brings Virginia into agree­ment with the entire rest of the coun­try.” Lawlor was one of three men on Virginia’s death row, and his 2011 death sen­tence was the last one imposed in the state.

(Frank Green, Appeals court rules 2011 Fairfax County death sen­tence flawed, Richmond Times-Dispatch, November 27, 2018; Appeals court over­turns Virginia man’s death sen­tence, Associated Press, November 27, 2018; Paul Collins, Commonwealth’s attor­ney to seek death penal­ty, Martinsville Bulletin, November 28, 2018.) Read Fourth Circuit’s opin­ion in Lawlor v. Zook, No. 17 – 6 (4th Cir. Nov. 27, 2018). See Virginia, Life Without Parole, and Sentencing.

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