The death of Trayvon Martin and subsequent acquittal of George Zimmerman have focused the public’s attention on the issue of race in America – both on the streets and within our criminal justice system.  While we must all respect constitutionally guaranteed due process rights, we must also not confuse the need to respect due process with the need to accept a criminal justice system that:

-    Disproportionately impacts people of color; -    Lacks transparency; -    Wastes tax dollars; -    Enables abuses of power; -    Relies on ineffective solutions; and -    Undermines the right to vote.

Throughout the fall, we will highlight these concerns in our blog series, Virginia’s Criminal Justice System – The Case for Reform.

Broken Justice: The Death Penalty in Virginia, Revisited

by Claire Guthrie Gastañaga, Executive Director

Earl Washington spent seventeen years in prison (including over nine years on Virginia’s death row) for a crime he didn’t commit.   Thirteen years ago next month, then Virginia Governor Jim Gilmore granted Mr. Washington an absolute pardon, making him the first inmate released from Virginia’s death row.
As the ACLU of Virginia found in its 2003 report, Broken Justice: The Death Penalty in Virginia, the Commonwealth’s criminal justice system was plagued with problems that led Mr. Washington to death row. Among the problems identified were the failure to punish prosecutorial misconduct, racial bias in the decision whether to seek the death penalty, procedural bars that limit access to the courts and the fairness of convictions and sentences, ineffectiveness of counsel, application of the death penalty to juveniles, and failure to implement an effective system for judging whether a person with mental retardation can be subject to the death penalty.
Ten years later, many of these same problems persist although use of the death penalty in the U.S. has declined.  Connecticut, Illinois, Maryland, New Jersey, and New Mexico have abolished the death penalty and New York’s death penalty was ruled unconstitutional by its Court of Appeals.  In the states that still permit the use of the death penalty, the number of executions and new sentences are down, and Virginia is no exception.  But, while the numbers may be down in Virginia, eleven people remain on our death row and prosecutors retain the power to bring new capital cases.
One of the recommendations that we made in Broken Justice was to abolish the death penalty for juveniles.  The U.S. Supreme Court took care of that in Virginia and nationally when it held that it is unconstitutional to execute an individual for a crime they committed as a juvenile (Roper v. Simmons).
Steps also have been taken to address the issue of substandard representation for indigent defendants charged with a capital crime through the establishment of the regional Capital Defender Offices and new qualification and training requirements.  Nonetheless, it still remains the case that, too often, the quality of the counsel a defendant receives is based on his or her capacity to pay for legal services.
Ineffective counsel issues are complicated in Virginia by procedural rules that make it almost impossible for a convicted individual to receive a new trial, even if new evidence exists that would prove his or her innocence.  For example, defendants whose lawyers fail to discover key facts and crucial information are simply out of luck if those facts or information come to light a mere twenty two days after conviction.  A negligent lawyer who misses a filing deadline subjects his or her client to Virginia’s harsh procedural default rules.  While bad lawyering is not unique to Virginia, strict procedural rules that seemingly ignore the realities of capital defense are.
As the American Bar Association found in its just released assessment of Virginia’s Death Penalty, “[i]n most respects, the state habeas process in Virginia emphasizes finality of convictions and death sentences over fairness.”  This is unacceptable and dangerous.  Fortunately, there are a number of steps that the Commonwealth can take to help minimize the risk that an innocent individual will end up on death row or be executed.
The following actions should be taken immediately to diminish the likelihood that we will execute an innocent person:
-    Eliminate the 21-Day Rule – This judicial rule prevents a trial court from considering new evidence more than 21 days after sentencing, regardless of whether the evidence shows that the defendant is innocent.  By eliminating the 21-Day Rule, we would better ensure that only the guilty remain in Virginia’s prisons.  Changes in the law to permit writs of actual innocence to be filed after 21 days based on newly discovered biological or non-biological evidence have not gone far enough to protect the rights of wrongly convicted persons.
-    Improve Access to the Courts – The current state habeas process must be reformed to make it more accessible for indigent inmates and to provide meaningful review of legitimate claims.  For example, death row inmates seeking to prove their innocence should not be hamstrung by rules dictating page limits for their briefs.  When an individual’s life is on the line, his or her lawyer should not have to choose between competing claims.  Furthermore, discovery rules should ensure that death row inmates have access to all necessary information, especially when many court appointed capital defenders may have failed to investigate their clients’ cases adequately to begin with.
-    Mandate Collection and Publication of Data in all Death-Eligible Cases – There is currently no state database that collects and disseminates data regarding outcomes and race and geographic issues in death-eligible cases.  Such a database would assist the Commonwealth in reviewing the proportionality in death sentences as well as help ensure that the Commonwealth complies with the due process and equal protection rights of defendants.
To the extent that Virginians remain unwilling to support abolition of the death penalty, it is long past time when Virginia should act to fix what’s broken in the current system.  We urge the General Assembly, Supreme Court of Virginia, and all other relevant government entities to take the steps necessary to address the recommendations the ACLU of Virginia and the ABA have made.
The ACLU continues to oppose the death penalty, and we believe that Virginia should join the states that have abolished its use.  Until that day, however, we must do all we can to protect the rights of capital defendants and ensure that no innocent person is put to death in the name of our Commonwealth.
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