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What follows is the text of the 1973 report of the Capital Punishment Advisory Group of the Virginia State Crime Commission and of the cover letter transmitting it to Governor Mills E. Godwin, Jr. and to the General Assembly. The Group was chaired by Delegate A. L. Philpott, and so its report has often been referred to as "The Philpott Report". There was no date on the cover letter or the report, but it is clear from internal evidence that the report was submitted sometime in 1973, probably toward the end of the year. I have taken the text from a copy of the report which is in the collection of the Library of Virginia on 9th and Broad Streets in Richmond. The call number is HV/8699/.V8/V8/1973. The staff of the State Crime Commission were unable to find this report, or any reference to this report, in their files. There are occasional misspellings or other errors in the text of the report, and I have copied these here as they were in the original without attempt at correction. The Report consists of both a Committee Report and a Minority Report. The document did not indicate which members of the Advisory Group, or how many members, supported the majority and minority reports. The members of the Advisory Group are, however, listed in the cover letter. The Advisory Group was formed pursuant to Senate Joint Resolution #123, passed by the Virginia General Assembly during the 1973 session. The previous June, the United States Supreme Court had decided Furman v. Georgia, 408 U.S. 238 (1972), which held that the death penalty as then administered amounted to cruel and unusual punishment. This basically invalidated all existing state death penalty statutes, including those in Virginia. The Advisory Group was formed to study the death penalty and make recommendations about whether Virginia should enact new laws, consistent with the Supreme Court's ruling, to reinstate the death penalty. One of the Supreme Court's main concerns was the discretion given to juries in deciding whether a given defendant merited the punishment of death. As a result, some people believed a law eliminating jury discretion and mandating the death penalty for certain crimes had the best chance of being upheld by the Supreme Court. It is clear from the Philpott Report that the majority of the Advisory Group accepted this assumption and approached their task by asking whether a mandatory death penalty law would be good policy. They concluded that it would not, and recommended that the death penalty not be reinstated in Virginia. As it turns out, the Advisory Group was wrong in assuming that a mandatory death penalty law would be required by the Supreme Court. North Carolina enacted a mandatory death penalty law in 1974, and that law was declared unconstitutional by the United States Supreme Court in Woodson v. North Carolina, 428 U.S. 280 (1976). In addition, on the same day that Woodson was decided, the Court also issued its decision in Gregg v. Georgia, 428 U.S. 153 (1976), holding that state death penalty statutes would be constitutional if they created acceptable standards for juries to use in deciding whether to impose the death penalty. The Virginia General Assembly rejected the majority recommendation of the Philpott Report and enacted a new death penalty statute at its 1975 session. Following the decision in Gregg, at the 1977 session, the General Assembly modified this statute to conform to the requirements laid out in Gregg. Virginia's first execution under the new statute took place in 1982. To date, a total of 81 men have been executed in Virginia under this post-Gregg statute, second only to Texas among all the states. Although they were wrong about the need for a mandatory death penalty
statute, the analysis of the Philpott Report about the various practical,
policy and philosophical problems with the death penalty remains valid
and important to the death penalty debate today.
-- Ed Wayland
[On the letterhead of the Virginia State Crime Commission, Commonwealth
of Virginia:]
TO THE HONORABLE MILLS E. GODWIN, JR.,
Enclosed is a copy of the Capital Punishment Advisory Group's report
to the
The Capital Punishment Advisory Group was chaired by Delegate A. L. Philpott and included the following members from throughout the State: Peter M. Axson, Commonwealth's Attorney, Chesapeake; James P. Baber, Commonwealth's Attorney, Cumberland; Senator Herbert H. Bateman, Newport News; Joseph E. Blackburn, State Bar, Richmond; Reid Ervin, Virginia Beach City Councilman, Virginia Beach; Delegate J. Samuel Glasscock, Suffolk; Reno S. Harp, III, Deputy Attorney General, Richmond; Roy F. Jamison, Virginia Association of Chiefs of Police, Culpeper; Delegate Dorothy S. McDiarmid, Vienna; Delegate Theodore V. Morrison, Jr., Member Virginia State Crime Commission, Newport News; Sheriff John R. Newhart, Chesapeake; George F. Ricketts, Member, Virginia State Crime Commission, Richmond; Frank Rose, Norfolk; Richard Rutyna, Professor, Old Dominion University, Norfolk; Senator H. Selwyn Smith, Manassas; Bishop Walter F. Sullivan, Richmond; Frank Swartz, Attorney, Norfolk; Senator George M. Warren, Jr., Bristol; Mrs. Ellen Gale, League of Women Voters, Annandale; Joseph A. Jordan, Jr., Attorney and Vice-mayor, Norfolk; Walter Green, Educator, Norfolk. During the 1974 Session of the General Assembly, Legislation will be
proposed by individual legislators and by the Virginia Code Commission
in connection with the reinstitution of the death penalty in Virginia for
certain prescribed offenses. The Crime Commission offers the majority
and minority reports of the Advisory Group without approval or disapproval
of either. Rather, the reports are being transmitted as an informational
service to the Governor and members of the General Assembly for their consideration.
We believe that the majority and minority reports represent a comprehensive
summary and discussion of the different points of view on this very important
issue.
A. L. Philpott
FINAL DRAFT -- CAPITAL PUNISHMENT ADVISORY COMMITTEE REPORT The 1972 Supreme Court decision in Furman v. Georgia rendered unconstitutional the Virginia Statutes authorizing the discretionary imposition of the death penalty. As a result of that decision, the death penalty apparently may now be imposed in Virginia only for treason and murder by an inmate of penal institution employee. The 1973 session of the General Assembly directed the Virginia State Crime Commission in Senate Joint Resolution #123 to make a study concerning the imposition of the death penalty in Virginia and alternatives thereto for the most serious types of crimes. At the request of the Crime Commission, a special committee chaired
by Delegate A. L. Philpott of Bassett and composed of representatives of
the General Assembly, members of the clergy, law enforcement officials,
and private citizens was formed to make the necessary study. The
Study Committee has held four sessions and has heard sixteen witnesses.
The witnesses were interested citizens, legislators, representatives of
the religious community and persons connected with the corrections system.
The opinion expressed by the witnesses varied greatly. The Study
Committee has also had access to studies made in other states regarding
imposition of the death penalty. The material, including a history
of capital laws in Virginia written by Committee member Richard Rutyna,
Professor of History at Old Dominion University in Norfolk, is on file
in the Virginia State Crime Commission offices.
The Report of the Capital Punishment Advisory Committee The position the State of Virginia should take with regard to the death penalty is no easy matter. Every person in Virginia has a very legitimate right to want to be secure in his person and his property. We want a solution to the crime problem. We want that solution now and we want it with as little expense to the taxpayer as possible. We want a "fitting" punishment for the particularly heinous crime. In spite of this we must recognize that crime cannot be quickly and significantly reduced simply by legislating severe penalties. The problem is much more complex. We would only delude ourselves and the public if we reimpose the death penalty when such an action would not only be unwise, but counter-productive. We must also recognize the awesome responsibility involved in the taking of human life by society. Before we can take a logical and reasonable view on the question of capital punishment, the question must be properly phrased. The nature of the question has been greatly qualified by the Supreme Court in Furman v. Georgia, 92 S. Ct. 2726 (1972). There is some difficulty in determining the exact purport of that decision as there were nine separate opinions. The Supreme Court appears to have said that the death penalty as a discretionary punishment is unconstitutional and that if the death penalty is constitutional at all it must be the mandatory penalty for a specifically defined crime. The question then is not: Should the death penalty be permitted? The question is: WILL OUR SOCIETY BE A BETTER PLACE IF CERTAIN SPECIFIC CRIMES CARRY A MANDATORY DEATH PENALTY RATHER THAN LIFE OR SOME OTHER LENGTHY TERM OF IMPRISONMENT? Those who propose imposition of the death penalty argue that it is justified for a number of reasons, primarily retribution, deterrence and prevention of additional criminal acts by those who merit the death penalty. The Study Committee believes that the facts do not support these reasons and that in any event they do not support a mandatory death penalty. The Study Committee believes that the use of the mandatory death penalty in Virginia should not be expanded for the following reasons: (1) Retribution is not a proper basis for the death penalty. It is argued that society has a legitimate psychological need to exact its pound of flesh and that only death is a fitting penalty for some vicious crimes. We are overwhelmed by the enormity of the offense and tend to believe that the individual has forfeited his right to be a member of society. But we still must ask ourselves what is justice? Is society made better or worse when it kills the perpetrator of a serious offense? It would seem that retaliation, vengeance and retribution are unworthy aspirations for a government in a free society. Society will not be better off if it seeks vengeance for its own sake. If there is any justification for the death penalty, it must rest on some ground other than retribution. We should also recognize the great difficulty in defining the particular offenses for which the death penalty would be "fitting". There has been an increasing hesitancy to impose the death penalty in recent years when such a penalty was discretionary. Frequently there are mitigating circumstances. Now we are required by Furman v. Georgia to legislate mandatory death penalties. It is virtually impossible to define a crime which we could agree should require the death penalty in every instance. The system of mandatory death penalties can only result in acquitals in many cases where a punishment less than death would be appropriate. A system requiring such acquitals is seriously defective. (2) The death penalty is not a special deterrent to crime. It is suggested that the death penalty has some special value in deterring the commission of serious offenses. The obvious reaction is that by the very nature of its severity it must produce a strong deterrent effect. The question is not whether the death penalty has a strong deterrent effect. The real question is whether or not it is more effective as a deterrent than life imprisonment or some other lengthy term of imprisonment. It would seem that if the death penalty had any special value as a deterrent, this value could be proven statistically. Actually, a comparision of statistics in states which have had the death penalty and states which have abolished capital punishment does not show that the death penalty actually deters crime. In fact, the experts generally agree that the statistical studies neither support or repudiate the deterrence theory. If we assume that those who advocate the ultimate penalty of death have the burden of proving its special value as a deterrent, then the Committee feels that the advocates have failed to produce any substantial evidence. In order for a particular penalty to be effective as a deterrent, it must be imposed consistently, with reasonable swiftness and certainty. The death penalty fails to meet any of these requirements. Since 1930 there have been 3,859 executions by civil authorities in the United States and approximately 86% of these executions were for murder. During the decade 1950-1959 there were 717 executions and some 77,000 homicides. One authority has estimated that only fifteen percent of all criminal homicides are capital crimes. Using these figures, only about one of one hundred homicides resulted in an execution and only one of sixteen first degree murders resulted in imposition of the death penalty. It can be easily seen that we have not utilized the death penalty with any degree of consistency or certainty. Under our system of jurisprudence we have not imposed the death penalty with any reasonable swiftness. Our system provides the accused with ample time for trial preparation, trial and appeals so that his rights may be properly protected. A free society cannot, and should not do otherwise, but we should face the fact that such lengthy delays seriously detract from any special deterrent value the death penalty might otherwise have. The deterrent theory presupposes a "rational man", but more often than not the criminal is not rational. The studies indicate that most murders involve victims and offenders who are related by blood or marriage or know each other well enough to get involved in an emotional relationship. A Philadelphia study indicated that of 588 homicides during the years 1948-1952, either or both the victim and the offender were drinking in two-thrids of the cases. A Florida penitentiary study indicated that 75% of the men and 90% of the women were under the influence of alcohol when they committed their offenses. The Philadelphia study also indicated that 65% of the homicides were committed on weekends which comprised only about 30% of the total hours. Perhaps it oversimplifies the matter to state that elimination of consumption of alcohol on weekends would cause a greater reduction in homicides than would imposition of the death penalty, but it does seem to follow that the vast majority of homicides are committed under such circumstances that the offender never thinks about the penalty for his offense. In short, it appears that there is no proof of any special deterrent
value in the death penalty. Without such proof we should not enact
new statutes to impose the death penalty. This is particularly true
when we realize the penalty must be mandatory and not merely discretionary.
(3) The death penalty is not effective in preventing additional criminal acts by those who "merit" such penalty. The argument is that those who receive the death penalty can never commit additional criminal acts. Such a statement is obvious and actually beside the point. We could argue just as easily that if we executed all persons convicted of any felony, those executed could never commit additional crimes. No rational person would propose such a policy. If we restrict the argument to include only those who commit vicious
crimes and thereby "merit" the death penalty, we recognize from the figures
previously cited that even under our discretionary death penalty statutes
only an extremely small number of such offenders have been executed.
At present, most of those who commit serious crimes have been allowed to
live and, after a period of imprisonment to return to society. The
Committee believes that the rigid imposition of the death penalty will
only increase the number of acquittals. Instead of reducing the number
of additional criminal acts by those who commit serious crimes by means
of imprisonment and rehabilitation, we will have more serious offenders
acquitted and thereby able to return quickly to criminal activities.
(4) The death penalty brutalizes human nature. There is a lessening of our regard for the value of human life when society takes a life, even the life of a vicious criminal. This argument proceeds not from some undeserved sympathy for the offender, but rather from the capacity of society to have a true concern for our fellow man. If society can take the life of a human, it becomes easier for one individual to take the life of another. We follow the theory that an individual should not take the life of
another human being except in extraordinary circumstances such as for self-defense.
There is some argument that society's right to take a life should not be
larger than a right of the individual to take a life. The State through
its agents should be able to take human life when such action is necessary
to protect its citizens from imminent danger of criminal acts. It
would seem that once the offender has been taken into custody the right
of the State to take his life should not exist as he cannot at that time
be a threat to the life of society.
(5) The death penalty has been applied prejudicially and inconsistently. This argument has lost some, but not much, of its force since Furman
v. Georgia. The history of the imposition of the death penalty has
shown that it has been disproportionately applied where the offender is
a male, a member of a minority group or poor. It could be argued
that a mandatory death penalty could not be applied prejudicially, but
the argument is false. Mandatory death penalties will simply result
in a disproportionate number of "favored group" offenders being acquitted.
The net result is that the Supreme Court, as presently constituted, will
declare all death penalties unconstitutional.
(6) The death penalty has resulted in the death of some innocent people. Humans are fallible. Judges and juries do make mistakes and some
innocent persons have been convicted and sent to their deaths. Such
errors are rare, but one innocent person executed is one execution too
many. The realization that we can make errors in determining guilt
and that a determination of guilt can lead only to execution will further
reduce the number of convictions and bring about an even more inconsistent
administration of justice with regard to serious crimes.
(7) The death penalty stands in the way of effective reform of the penal system. The public would like to have a quick and easy end to crime but we are deluding ourselves if we believe that re-imposition of the death penalty will solve our crime problem. The problem is quite complex and requires action on many levels. We must endeavor to provide more educational and economic opportunities for all people. We must provide better salaries, better equipment, and better support for our police as it has been shown that the certainty of punishment is much more effective than the severity of punishment. We need to provide the necessary personnel, facilities and programs to make our penal system work. More effort should be spent in true rehabilitation and a more effective probation system. We should honestly face these problems rather than trying to solve the crime problem through re-imposition of the death penalty. If the death penalty is not re-imposed, the question arises as to what
alternative penalty may be imposed for those who commit vicious crimes.
Three possible alternatives should be considered:
(1) Life imprisonment without the possibility of parole. It would appear this alternative would be unwise. The imposition
of life imprisonment without the possibility of parole would give no incentive
to the prisoner to behave in a better fashion. Such an individual
could become a source of continuing serious problems in the penal system.
(2) Life imprisonment with parole being given only after a hearing in the Court which sentenced the offender and only after the passage of considerable time, such as 15 to 20 years. It would appear that this alternative would also be unwise. A
hearing even after 20 years in the Court where the offender was originally
sentenced could still be in an emotionally charged atmosphere which would
fail to give the offender who had redeemed himself a fair chance.
Such a hearing would not adequately use people who are skilled in the handling
of offenders and in the techniques of determining whether or not it is
reasonable to return them to society.
(3) Life imprisonment using an adequately trained and sufficiently staffed parole system. It would seem that this alternative offers the best possibilities. The Study Committee therefore recommends the development of a stronger, more effective parole system with adequate staffing so that each individual eligible for parole will be given more careful evaluation, thus allowing deserving inmates to be released while others, who are incapable of appropriate behavior in society, will be kept in the system for the protection and well being of the community. It is further recommended that, under this stronger parole system, all incarcerated individuals be required to submit to a reasonable period of supervision prior to the termination of their sentence. For the reasons discussed above, the Capital Punishment Advisory Committee recommends against the reinstitution of the death penalty in Virginia. It is felt that a thorough reexamination and reevaluation of the criminal justice system in Virginia should be made with emphasis on the need to work for the correction and rehabilitation of criminals, on the need to provide better trained personnel to work with inmates and on the need to provide more adequate prison programs. MINORITY REPORT -- CAPITAL PUNISHMENT ADVISORY COMMITTEE Pursuant to the provisions of Senate Joint Resolution No. 123 the Virginia State Crime Commission created the Capital Punishment Advisory Committee consisting of some 22 members representing all segments of our Commonwealth. Included were members of the legislature, Commonwealth's attorneys, a chief of police, a sheriff, several attorneys, members of the clergy and the public at large. This Committee held several public hearings and considered very carefully whether or not any of the 18 statutes now providing for the discretionary death penalty should be amended to require a mandatory death penalty. At the public hearings, members of the clergy representing all faiths were unanimous in their opposition to the imposition of the death penalty upon various grounds. A substantial number of others who testified before the Committee representing the people of this Commonwealth favored the imposition of the death penalty in certain cases. We feel that the death penalty should be retained as punishment for a limited number of crimes and only when a homicide is a result of the criminal activity. There has been much testimony and argument before the Committee as to whether or not the death penalty acts as a deterrent to crime. The entire Criminal Code of Virginia listing the penalties for enumerable offenses is predicted upon the fact that an individual will be punished for his crime. The amount of the punishment to be imposed is predicated upon the seriousness of the criminal activity of which the accused is convicted. We feel that the imposition of the death penalty is an appropriate response of society to the commission by an individual of specific criminal acts. In certain instances it can be shown that the possibility of the imposition of the ultimate penalty is a deterrent. While in other cases there is a lack of evidence to indicate whether or not it is a deterrent. Regardless of the foregoing we are of the opinion that the imposition
of capital punishment is an appropriate response of society to the commission
of certain criminal acts. For these reasons we feel that it would
be appropriate that the death penalty be imposed in a limited number of
cases where homicide is involved.
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