The Death Penalty Experiment Has Failed

By Jack Payden-Travers, Director

Virginians for Alternatives to the Death Penalty

Thirty years ago this month, in Gregg v. Georgia, the U.S. Supreme Court authorized states to resume capital punishment so long as they could eliminate “substantial risk that it would be inflicted in an arbitrary and capricious manner.”  Virginia is set to mark the anniversary by executing Brandon Hedrick on July 20, then Michael Lenz on July 27.  Brandon Hedrick was barely 19 years old when he shot Lisa Crider, a young mother from Lynchburg.  Michael Lenz was already in prison when he retaliated against a threatening fellow inmate, Brent Parker.  The details of these cases highlight the need to protect the promise of Gregg and eliminate the arbitrariness in the administration of the death penalty. 

For example, since Hedrick’s trial, the execution of persons with mental retardation has been prohibited.  Hedrick’s IQ was measured at about 76, putting him within a range considered mildly mentally retarded.  Virginia law requires capital defendants to receive a comprehensive evaluation about mental retardation but does not allow Virginia courts to act in cases like Hedrick’s because he is too far along in the process.

Brandon Hedrick apparently “chose” electrocution as his method of execution. Regardless of a prisoner’s mental capacity the VA Department of Corrections consistently refuses to allow prisoners to consult with counsel when choosing a method of execution. Guards come to the prisoner’s cell in the dead of night to have them fill out the Method of Execution form. If inmates choose a method of execution or even if they don’t by refusing to fill out the form, the VA Attorney General’s office contends that the prisoner has waived any protection against the imposition of cruel and unusual punishment. As the federal government provides this right to those facing execution, one must ask: Why does Virginia deny it?

Also, since Hedrick’s trial, Virginia established specialized regional capital defender units appointed in every death penalty case.  These units are intended to eliminate the disparity in the quality of representation in death penalty trials.  Far from providing “quality” work, one of Hedrick’s lawyers admitted “(we) did not meet to seriously discuss trial strategy until one business day before trial.”  His lead attorney had never before selected a capital death-qualified jury, and neither lawyer had ever completed a capital murder trial.   Witnesses relied on at the “life-or-death” sentencing part of the trial were not interviewed by counsel until they were on the stand.  In the year allowed to prepare for trial, one lawyer worked 53 hours - less than nine minutes a day - on the case; the other worked 119 hours.  

These meager efforts meant that jurors asked to determine Hedrick’s fate, heard little from his side, and next to nothing about Hedrick’s innocence of charges of rape and sodomy.  They did not know, for example, that the police investigators on the case thought Hedrick “did everything in his power to aid the investigation,” and found him honest and remorseful about his crimes.  Neither did they know that Hedrick’s older co-defendant, Trevor Jones, who accused Hedrick of raping and sodomizing the victim despite no physical evidence to support his accusations, vowed to “see Hedrick killed” when he learned that Hedrick confessed to police.  This never came out at trial because, just when it came time to question Jones, Hedrick’s lawyer who all along took responsibility for examining Jones, suddenly turned to his co-counsel and said, “You do the cross.”  Jones expected to have his sentence reduced significantly for testifying against Hedrick but Jones’ judge, who knew that Jones orchestrated the abduction and killing, found the men equally culpable: “Make no mistake about it, without (Jones’) actions, Lisa Crider would still be alive today.”  Indeed, Jones put his shotgun in Hedrick’s hand and told Brandon, “Do what you have to do,” in order to protect Jones from retaliating drug dealers who knew Ms. Crider. 

In the more recent Washington-area sniper case, a similar leader-follower dynamic produced the exact opposite result, with the teenager who did the shooting spared a death sentence and the leader who put the gun in his hand sentenced to death.  The defense in that case worked a total of 6,540 hours; Hedrick’s lawyer provided him only 2.5% of the time Lee Malvo received.  In other words, for every hour Malvo’s attorney labored over the case, Hedrick’s attorneys work 90 seconds.

Jurors asked to sentence Michael Lenz to death were made to use a jury verdict form the Supreme Court of Virginia has since found misleading and unacceptable, and which no court has used in years.  There is no more gross procedural legal error; the verdict form is the statement of the very decision the jury is charged to make.  A few years ago, with the support of more than two dozen state legislators, Governor Warner granted a reprieve to death-sentenced inmate, Bobby Swisher, in hopes the Virginia court would vacate Swisher’s death verdict.  Unfortunately, the court found that it was powerless to do so and Swisher was put to death.  There is no dispute that Lenz’s verdict form was unnecessarily deceptive and an improper statement of the law, the only question is whether anyone will intervene to determine whether a fair and properly instructed jury would find him deserving of a death sentence.

The promise of a death penalty free form “arbitrary [and] capricious” application now has a history spanning 30 years and 1,031 executions.  No state executes more quickly than Virginia (6.1 years after conviction), and only one executes more often.  Among those sentenced to death, 123 men and women have been able to prove their innocence and been exonerated.  In other words, at least four innocent people were sentenced to death each year.  The time needed to establish innocence is of special concern in Virginia: it took an average of 9.2 years for these people to prove their innocence.  In Virginia, they would each have been dead years before their exoneration.

The promise of Gregg has failed, as has the national death penalty experiment.  There is no need to collect more evidence of arbitrariness or caprice in its application.  It is time to suspend the use of capital punishment in Virginia and focus resources on preventing violent crime.

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For further information contact:

Jack Payden-Travers, Director

Virginians for Alternatives to the Death Penalty

P.O. Box 4804

Charlottesville, VA 22905

434-960-4673

Jack@VADP.org

Residence:

1711 Link Road

Lynchburg, VA 24503

434-384-4744