Scathing ACLU report attacks law

Saturday, April 8, 2000

Times-Dispatch Staff Writer

The death penalty in Virginia has been marked by unfair trials, poor representation of defendants, limited appeals court review and the possible execution of innocent men since it resumed in 1977, according to a study by the ACLU of Virginia.

The report, "Unequal, Unfair and Irreversible," concludes that capital punishment in Virginia still is arbitrary and discriminatory -- factors the U.S. Supreme Court cited when it ended the use of the death penalty in 1972.

Virginia and many other states enacted new death-penalty laws to address the concerns of the U.S. Supreme Court in the mid-'70s. Virginia's was adopted in 1977, and there have been 76 executions in the state since they resumed in 1982.

But, according to the study, "the evidence gathered indicates that death sentences in Virginia continue to be influenced by the location of the crime, the poverty of the defendant and the race of the victim."

"Until such factors are eliminated, the state compromises its integrity with each execution," the ACLU's report concludes.

Attorney General Mark L. Earley strongly disagreed, finding fault with the report's conclusions and the timing of its release.

"It speaks volumes to the average citizen that the ACLU would release a biased and erroneous report on the death penalty at the beginning of Crime Victims' Rights Week in Virginia and nationwide. No one should lose sight of the fact the ACLU is a group opposing the death penalty in all cases, no matter how vile and malicious the crime," Earley said.

The American Civil Liberties Union report was released the same day religious broadcaster Pat Robertson said he was in favor of a nationwide moratorium on executions.

Earley said that "the ACLU report also glosses over or ignores the fact that, in every Virginia execution since 1982, the prisoner's guilt either has been undisputed or conclusively established. Virginia governors of both parties have stepped in to commute death sentences when they had any reason to doubt those sentences were appropriate."

The attorney general said there are many layers of judicial review and protections afforded the accused and the convicted in death cases.

"No person is subject to the death penalty in Virginia until all such levels of judicial review have been exhausted. The governor of Virginia has the power to grant or deny clemency after all the appellant reviews, if the circumstances so warrant," Earley said.

But the ACLU study says Virginia governors have used executive clemency to stop six executions -- more than the governors of any other state -- in most of the cases because of doubts raised by evidence never heard by juries.

"Some may point to these cases as evidence as further proof of the system's reliability. But experts consider clemency . . . a poor safeguard against the ultimate injustice of executing an innocent person. In fact, Virginia governors have failed to stop a number of executions in cases in which there was evidence casting doubt on guilt," the report says.

The report cites as examples: Roger Coleman, executed in 1992; Ronald Bennett, executed in 1996; Carl Chichester, executed in 1999; Joseph Roger O'Dell, executed in 1997; and Michael Satcher, executed in 1997.

More compelling, however, is that cases where clemency has been granted have gone all the way through the state review process and the federal review process without addressing evidence that casts doubt on their guilt, the study says. "In large part, this has been a failure of Virginia's courts."

In response to Earley's allegation the report contains errors, Kent Willis, executive director of the ACLU of Virginia, said, "All the data is here in our office for anyone to inspect, and we stand by our report."

Among the ACLU study's findings:

  • Although most murder victims in the state are black, only a small percentage of murders of blacks have resulted in death penalties. FBI figures show that between 1978 and 1997, nearly 58 percent of Virginia's murder victims were African-American and 41 percent of the victims of apparent capital crimes were black.

  • "Yet of the 145 crimes for which a death sentence was imposed during the same period, only 19 percent involved black victims. Thus, when a black person is the victim of a capital crime in Virginia, the defendant is far less likely to be sentenced to death than when a white person is the victim.," the study says.

    The data show that in capital murders involving rapes or robberies, black offenders who kill white victims in Virginia "are significantly more likely to be sentenced to death than white or black offenders who kill black victims."

  • Prosecutorial discretion -- the power of commonwealth's attorneys to decide when to pursue the death penalty -- has created a wide disparity among jurisdictions in the use of the death penalty.

  • Some commonwealth's attorneys routinely seek the death penalty, while others never, or almost never, seek it, the report said.

    As a result, between 1978 and 1997, eight jurisdictions -- Prince William, Arlington, Pittsylvania, Bedford, Chesterfield and Montgomery counties and the cities of Danville and Hampton -- have imposed one-third of Virginia's death penalties, even though those jurisdictions recorded only 10 percent of the state's potential capital murders.

    The study cites FBI statistics that show the murder rate in those jurisdictions has risen since 1978, while the murder rate in counties and cities where no one has been sentenced to death has fallen.

  • Despite the potential for problems, there is little chance that Virginia's appellate courts will correct capital trial errors.

  • "The Virginia Supreme Court, which has reversed fewer death sentences than any other state supreme court in the country, has never granted an evidentiary hearing or appointed an expert or an investigator to a death penalty case," the study says.

    Of 128 death sentences imposed since 1977, the Virginia Supreme Court has reversed 11, or about 8 percent of the cases, compared with a national average of 40 percent, according to James S. Liebman of Columbia Law School, one of three professors who worked on the study.

    Virginia also has a federal appeals court with the lowest reversal rate for death cases in the country -- the 4th U.S. Court of Appeals. Nationwide, federal appeals courts grant new hearings to death-row inmates 39 percent of the time, while the 4th Circuit has approved such hearings in Virginia cases only 4 percent of the time.

    "Virginia, in my view, has the broadest death-penalty statute in the country. It has a court system in which representation is poorly funded and post-trial review is very limited. It's got a conservative bench, both at trial level and at Supreme Court level. And then it has the 4th Circuit," Liebman said. "When it comes to getting and keeping death sentences, the planets are just really aligned over Virginia."

  • The state has no enforceable means of ensuring that competent lawyers are appointed to represent indigent defendants in capital-murder trials. Some 97 percent of the men sentenced to death since 1977 have been too poor to afford their own lawyers.

  • Yet, it is virtually impossible to assess the quality of lawyers in capital-murder trials "using the few records and reports the state requires," the study says.

    The first decade after Virginia enacted its new death-penalty statute, there were no standards by which lawyers were selected to represent poor defendants. Their fees were capped at $650 per case.

    The state now has standards and a list of lawyers who meet them. However, there is no screening mechanism. Lawyers can join the list simply by filling out a form identifying themselves as qualified, according to the study.

    "In any event, the statute that led to the promulgation of these standards specifically notes that judges are not required to appoint lawyers from the list," the study says.

    Published statistics on attorney disciplinary actions indicate that lawyers appointed to represent defendants in capital cases are six times more likely to be the subject of bar disciplinary proceedings than other lawyers.

  • In 1998 and 1999, Virginia executed eight prisoners within five years of their sentencing dates. "No other state comes close to this record," the ACLU said. The national average is nine years.

  • Among the study's other findings are that the state's record-keeping systems for capital cases "are so rudimentary, incomplete, and inaccessible, there is no way to thoroughly compile objective data about the death penalty here."

    There is no central repository for information about the way the state administers the death penalty and no enforceable or reliable method for compiling data about capital prosecutions, according to the report.

    "Even the number of capital indictments [since 1972] is not known," the report says.

    "More study is needed. Virginia's legislature is responsible to its citizens for the way the state administers the death penalty. But if the state does not accurately document its administration of the death penalty, it can neither inform its citizens or defend its practices."

    The Black Caucus of the General Assembly unsuccessfully sought a similar study during the last session. The effort was opposed by the Virginia attorney general's office, which feared a moratorium on executions might be sought pending the study's outcome.

    State Del. Dwight Clinton Jones, D-Richmond, who sought the state study, said, "I think it's going to be more difficult for Virginia to resist the national movement toward more scrutiny on capital punishment."

    He said he will seek a state study again next year.

    The ACLU study was published by the ACLU of Virginia and was primarily researched by Laura LaFay, a law student and former reporter for the Virginian-Pilot.

    Also among those contributing were lawyers Gerald T. Zerkin, Michele Brace and Rob Lee, and professors Richard S. Bonney of the University of Virginia Law School, Neil Henry of Virginia Commonwealth University and Liebman of the Columbia Law School.

    Call Frank Green at (804) 649-6340 or e-mail him at

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