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Expanding a Broken System: Death Penalty Policy in Virginia

The moral debate about the death penalty has raged for decades. But current national trends indicate that states’ legislators increasingly view the death penalty as a public policy failure due to the high financial cost, the potential of executing the innocent, its ineffectiveness as a deterrent to capital crimes and its arbitrary application on the basis of race, geography and socio-economic status. They are also beginning to understand how much capital punishment hurts murder victims’ family members, as more attention and resources are focused on maintaining the system than on support services and programs for surviving family members of homicide victims.


New Jersey abolished capital punishment in 2007. This year several states, including New Mexico, Maryland, Kansas, New Hampshire, Illinois, Texas and Montana, are debating repeal. The economic crisis is the catalyst for many lawmakers consideringabolishing the expensive death penalty system.


Sadly, Virginia is not part of this trend. During the 2009 General Assembly session, a capital punishment repeal measure was quickly defeated in the House Courts of Justice criminal subcommittee. A common sense reform effort was also blocked. Virginia lawmakers are heading in the opposite direction from national trends by continuing to pass unnecessary and excessive legislation to expand the capital murder statute which will only exacerbate the already broken death penalty system.


Since 1976 130 people have been exonerated from death rows nationally, and lingering questions of innocence remain in several cases after individuals have been executed. In Virginia, Earl Washington Jr. came within days of execution for a crime that he did not commit. He was granted an “absolute pardon” by Gov. Jim Gilmore in 2000 when DNA evidence proved his innocence.


Wrongful convictions have been highlighted in Virginia in recent weeks through a state project that is reviewing cases from 1973-1988 to clear the wrongfully convicted through DNA evidence preserved from those cases. Since the project began, there have been at least nine cases where the DNA tested did not match the person convicted of the crime. Fortunately, none of these individuals were sentenced to death.


The cases of Washington and other death row exonerees raise a critical question: Is it worth maintaining the death penalty when it has insufficient protections against wrongful convictions and executions? The capital justice system is vulnerable to human error and the risk of executing the innocent will always be present. Are we Virginians willing to take that risk?


Then there is the issue that lawmakers nationwide have been paying close attention to – cost. In recent years several studies have demonstrated significant cost savings to states if they repeal the death penalty and replace it with alternative punishments, such as life without parole.


In Kansas, the costs of capital cases are 70 percent more expensive than comparable non-capital cases, including the costs of incarceration. A 2008 Maryland study showed that it costs $3 million to prosecute a capital-eligible case in that state, compared to the $1.1 million to prosecute a capital-eligible case where the death penalty is not sought.
Although a cost study has not yet been conducted in the Commonwealth, the data collected from these and other studies infer that Virginia might benefit financially by repealing capital punishment. In Virginia, as in other states, the budget shortfall was the primary focus of the 2009 legislative session. Many lawmakers viewed repealing the death penalty as a method for reducing spending and eliminating ineffective public policy.


But in 2009 the Virginia General Assembly passed three death penalty expansions. Redefining the “triggerman rule”, the most extreme expansion, would transform the current capital justice system in the Commonwealth to a system where one’s intent and not actions are on trial. How can we ever to know for certain that the “get-away” driver in a robbery that escalated to a homicide had prior knowledge that a murder would take place? There would be no DNA or physical evidence to support that contention. There is a great chance the intent of the individual would be determined on the word of the actual triggerman.


These expansions not only increase the number of individuals who are eligible for the death penalty. They also increase the financial burden on taxpayers and the already strained resources in the Commonwealth.


As our state and national economic crises deepen, only programs proven to work and to be cost effective are being preserved. The death penalty is inherently flawed on many levels with costs even greater than the strain on the state budget. Virginia should end it and apply the savings gained from repeal to effective law enforcement and crime prevention programs, and to programs that will help murder victims’ family members heal and rebuild their lives.

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