1. The use of prosecutorial discretion in the application of the death penalty.
2. The fairness of Virginia’s judicial review process, including executive clemency.
3. Race as a factor in the death penalty

1. Execution of juveniles or the mentally retarded
2. The study was not designed to address whether or not inmates who are currently on death row are innocent of the crimes for which they are sentenced.
3. The study also did not review the system of identification and selection of qualified counsel for capital murder defendants.
4. It also did not address jury selection or instruction.
5. The study also did not review collection, preservation and testing procedures of DNA and other material evidence.
6. Issues related to economic disparity and poverty.

1. JLARC staff selected 1995 as the starting point for the study because that was the year parole was abolished in Virginia. According to some prosecutors the statutory change decreased the likelihood that they would pursue the death penalty, as a capital conviction was not necessary to ensure that defendants would remain in prison for life.
2. JLARC used a cluster method to statistically review available data.

1. Since the abolition of parole in 1995, nearly eight out of every 10 persons who were arrested for a capital eligible crime were indicted for capital murder.
2. Over this same time period, Commonwealth’s Attorney’s have sought the death penalty for nearly three out of every 10 persons who were arrested for a capital-eligible crime.
3. The race of neither the defendant nor the victim plays a role in the decision by local prosecutors to seek the death penalty.
4. Commonwealth’s Attorneys are more likely to seek a capital murder indictment when the murder victim is a female and the crime is committed in a non-urban area.
5. Capital murder cases that are very similar (vileness, future dangerousness, nature of evidence) are handled very differently by Commonwealth’s Attorneys in different sized jurisdictions.
6. Regarding direct review, the Virginia Supreme Court has affirmed 93% of all cases in which a death sentence had been imposed in the State’s circuit courts since 1977. In affirming these death sentences, the court considered and rejected on their merits 83% of all claims of trial error.
7. None of the 119 death sentences reviewed by the Virginia Supreme Court were determined to be excessive or disproportionate. In making these determinations, the Virginia Supreme Court appears to have narrowly applied the statutes defining proportionality review in Virginia.
8. At the State and Federal habeas corpus stages of the review process, the recognized rate of trial error in cases where defendants were sentences to death was only two and four percent respectively.
9. This may be partially related to the fact that more than three of every ten claims of trial error made by defendants during these phases of post conviction review were rejected because they violated procedural restrictions.
10. This indicates that through the application of the doctrine of procedural default, post conviction review for death row inmates has been expedited by the courts and that many claims raised by these inmates are not considered on their merits.
11. More than one third of all capital defendants on death row made a final appeal for clemency based on a claim of innocence. In 18% of these cases, some form of clemency was granted.
12. Whether the clemency process is a reliable safeguard against the execution of an innocent prisoner cannot be determined because of lack of records. Much of the process occurs beyond public view and is thereby shielded from serious scrutiny. The process of executive clemency would benefit from greater structure and openness.

General Observations:

The study continually asserts that race [of the victim or defendant] is not a factor in capital murder indictments, however data presented provides some discrepancies to this conclusion:

¨“ In terms of race, blacks were substantially more likely to be arrested for a capital eligible offense than their white counterparts. In particular, six out of every ten persons who were charged with a capital eligible crime over this five year period were black.” (P.24)

¨“Defendants who murdered white victims were also more likely to be indicted for capital murder and face prosecution than are defendants who murdered black victims. However, once factors are considered which relate to the size of the locality in which the offense was perpetrated, the circumstances of the capital murder, and the relationship between the defendant and the victim, race appears to play no role in the decision-making process of Commonwealth’s Attorneys.” (P.44)

¨“It should be noted that the review does not take into account for arrest rates which result in a higher number of black defendants arrested for capital-eligible offenses.” (P. 52)

¨“Specifically, a substantially larger portion of the death cases involved rape, a higher portion of the victims in death cases were white, and the cases were significantly more likely to be located in medium density jurisdictions.” (P. 57)

¨“Once a defendant is indicted for capital murder, prosecutors are not bound to seek the death penalty. Therefore, even in a system in which race was not a consideration in the decision to indict, it is possible that black defendants could, nonetheless, face prosecution as a “death case” at a higher rate than non-blacks.” (P. 62)

¨“While the odds ratios appear to indicate that prosecutors are over three times more likely to seek the death penalty if the victim is white, this result is not stastically significant and therefore cannot be treated as a reliable predictor of whether a prosecutor will seek the death penalty.” (P. 66)
 

The study also asserts that its goal was not to determine whether or not claims of innocence by inmates on death row are substantively grounded and further “it cannot be concluded from the findings presented in this study that the state is executing persons who are innocent of the crimes for which they were sentenced.”
 

¨The Association of Commonwealth Attorney’s erroneously interprets the findings to conclude that “Virginia is not executing innocent people.” (Appendix F, Linda Curtis) However it is important to recognize that not only does this study not show us that innocents are being executed, it also cannot show us that innocents have not been executed in the past. In addition, it makes no claim to review current cases on death row to determine innocence.