The death penalty in Virginia
By WILLIAM F. NEELY, The commonwealth's attorney for Spotsylvania County
(He wrote this commentary prior to the capital-murder indictment of Michael A. Morris in the 1990 murder of Nancy Seay)
Printed in The (Fredericksburg) Free-Lance Star, May 24, 1999
In my 17 years as a prosecutor in Spotsylvania County, I am constantly reminded of the power of this position and of my duty to use it not only to vigorously prosecute the guilty but also to protect the innocent.
Accordingly, a prosecutor can never take lightly the decision whether to seek the death penalty - the ultimate punishment.
Nonetheless, it is my sworn duty as commonwealth's attorney to enforce the criminal law of Virginia, which includes seeking the death penalty in the rare murder cases in which it applies. I say rare, because Spotsylvania County hasn't had a capital murder case since 1980, and - although I have prosecuted many murderers in my career - none yet has qualified as a capital-murder prosecution under Virginia law. In my view, Virginia's capital murder law is fairly written and justly enforced.
The death penalty for murder has been enforced throughout mankind's history. For example, ancient Israel established a system of laws based upon the Ten Commandmentsincluding capital punishment. "He who strikes a man so that he dies, shall his own blood be shedfor God made man in his own likeness." (Genesis 9:56.)
In the United States before 1972, the death penalty was applied to many types of crimes, such as murders, rapes, and robberies. However, in 1972 the U.S. Supreme Court decided that the procedures used by the states to apply the death penalty were so arbitrarily and capriciously applied that they violated the Constitution's Eighth Amendment ban against cruel and unusual punishment. Yet it is important to note that the high court has never held that the death penalty for murder violates the Eighth Amendment. Indeed, the court has repeatedly ruled that the execution of a convicted murderer by the electric chair, for example, is not cruel or unusual punishment.
In 1977, Virginia enacted revised capital murder statutes to comply with the U.S. Supreme Court's '72 decision. In that decision, the court ordered the states to narrow the imposition of a death sentence to only the most horrible crimes. Virginia's legislature decided that it would limit the death penalty exclusively to 1st-degree murders, and then only to such murders of certain types:
(1) During the course of an abduction committed with the intent to extort money or to sexually defile the victim.
(2) For hire.
(3) Of an inmate.
(4) During the commission of a robbery or attempted robbery.
(5) During the commission of certain classes of sexual assaults.
(6) Of a law-enforcement officer during the performance of his duties.
(7) Of more than one person as part of the same act.
(8) Of more than one person within a 3-year period.
(9) Of a person in the furtherance of a narcotics-distribution scheme.
(10) Of any person by another pursuant to a continuing criminal enterprise.
(11) Of a pregnant woman with the intent to terminate her pregnancy.
(12) Of a child under age 14 by an adult age 21 or older.
In addition, the prosecution must also prove the following:
(1) The murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim; or
(2) After considering the criminal record of convictions of the accused, there is a probability that the defendant would commit future criminal acts of violence that would constitute a continuing serious threat to society.
Anti-death penalty activists argue that we, as a modern civilization, have progressed too far to still be enacting vengeance upon murderers by executing them. But the high court explicitly disagrees. The question then arises, are the procedures used in Virginia death penalty cases fairly applied? In my experience as a Virginia prosecutor, the criminal trial and appeals process here are more than fair.
Under Virginia law, someone accused of a capital murder who cannot afford to hire a lawyer will likely be appointed 2 defense attorneys, at least one of whom must have had significant experience in defending murder cases. Although the fees paid to court-appointed lawyers in Virginia are minimal in most cases, there is no fee restriction in capital cases. Such lawyers are paid by the hour through the court for all the time they spend defending the case. Further, the defendant likely will enjoy a court-appointed private investigator, psychiatrist, and--if the evidence against the accused involves matters such as DNA or fingerprints - expert witnesses in forensic science.
Assuming an accused murderer receives a death sentence, he has an automatic appeal straight to the Virginia Supreme Court. Thereafter, his case will be reviewed not only by the U.S. Supreme Court but also by various other federal courts before any execution can take place.
Although the Virginia legislature and Congress have recently enacted laws limiting the number of habeas corpus reviews that a convicted capital murderer can request, it still takes on average 5 to 6 years from conviction before the state and federal appellate courts complete their reviews and clear the way for execution.
Obviously, if any of the appellate courts find that the accused's rights have been violated, it will order that his conviction and execution be set aside and that he be retried. That such reversals by the appellate courts in capital murder cases are exceedingly rare in Virginia is a testament to the fairness and thoroughness of the way these cases are tried here.
Death-penalty opponents argue that such a penalty does not actually deter crime.
While I concede that there exist no statistics to prove the proposition that the death penalty does deter, I know from experience that most prosecutors and police officers believe it does. Police and prosecutors commonly run across defendants who have refrained from committing murder during the course of a robbery or a sexual assault, for example, out of fear of the death penalty. Further, the penalty protects police officers and prison guards because criminals know that they will pay the supreme price if such an officer is murdered in the line of duty. In my view, the very fact that the death penalty is vigorously enforced in Virginia does indeed serve as a criminal deterrent here.
Opponents of the death penalty will also argue that the enforcement of that penalty prevents a person from his right to penance, and it excuses society from its responsibility to rehabilitate. But some murders are simply so atrocious and vile, and some perpetrators are so dangerous, that certain criminals forfeit their right to live among mankind. A cursory review of a few randomly selected actual death-penalty cases speaks volumes about such criminals:
(1) Murders ruled to be outrageously vile.
A young woman was abducted, subjected to multiple sexual assaults, strangled, and stabbed - after which her murderer ordered pizza and planned how to dispose of the body.
A 19-year-old woman was bound, robbed, and stabbed over 40 times. Her body was covered in bleach and the murderer attempted to set fire to it in order to hide his crimes.
A woman was shot, then hanged and robbed while her murderer drank her wine and listened to her stereo as he watched her die.
(2) Murderers held to constitute future danger to society.
The victim, a doctor, was bound, raped, and strangled to death in her own home by a murderer who had committed other murders and who was on parole at the time of the attack.
3 restaurant employees were robbed, one was severely beaten, and all 3 were then slain execution style.
A woman was strangled to death, pistol-whipped, and sexually assaulted by a convicted murdered and rapist who was free on parole.
The death penalty for murders like these is the law of the land, supported by the overwhelming majority of our citizens. So long as it remains so, Virginia police officers, prosecutors, and courts will continue to do their duty in seeing that the death penalty is fairly, uniformly, vigorously, and expeditiously enforced.