Virginia has a moral obligation to see that justice is administered fairly in the state. An effort is needed to address
weaknesses in the justice system—some of which may allow for innocent people to be arrested, tried and executed.
There are serious issues associated with the administration of the death penalty in Virginia that need to be addressed.
While those issues are being studied and discussed, there should be a moratorium on executions in the Commonwealth.

Since 1972, 111 people from 25 states have been exonerated and released from death row. During this same period,
876 people have been executed. This amounts to about one person exonerated for every person executed. If one in
every heart surgery ended in death, that would be an unacceptable error rate. Clearly this dismal record sheds doubt
on the fairness and effectiveness of the criminal justice system in administering this most serious criminal justice policy.

Inadequate representation of defendants facing the death penalty is common:
· About 90% of all people facing capital charges cannot afford their own attorney.

· No state, including Virginia, has met standards developed by the American Bar Association for
  appointment, performance, and compensation of counsel for indigent prisoners.

· Even if a public defender or court-appointed counsel is an excellent lawyer, he/she often does
  not have the resources to discover mitigating evidence necessary to providing a competent      
  defense in a complex case. These lawyers almost never have the same amount of resources as the
  prosecutors seeking the death penalty.

There is ample evidence that the death penalty is applied in a racist manner:
· In Virginia, a black defendant is 3.5 times more likely to receive the death penalty for rape and
  murder of a white victim than for the same crimes against a black victim.

· The JLARC* Review of Virginia’s System of Capital Punishment issued in 2000 found that while
  21% of all defendants faced the death penalty when charged with a death-eligible crime in which
  all of the victims were black, this percentage jumped to 44% when at least one of the victims was white.

* JLARC stands for Joint Legislative Audit and Review Commission of the Virginia General Assembly.

There is evidence of prosecutorial misconcuct:
· Harmful Error, a recent report on prosecutorial misconduct by the Center for Public Integrity,
  found 131 cases of alleged prosecutorial misconduct in the state of Virginia, at least three of
  which involved the death penalty.

· In the year 2000, a Virginia death penalty conviction was overturned as a result of conflicts of
  interest known to the two prosecutors before the case went to trial. One conflict was that a juror
  was known to be the ex-wife of a Deputy Sheriff who would be called as a witness (this juror
  actually became the foreman of the jury). The prosecutors also withheld the fact that one of
  them had represented the juror in her divorce proceedings. Less than a year after this conviction
  was overturned, one of the prosecutors had another conviction overturned for withholding at
  least ten pieces of exculpatory evidence from the defense. These are not isolated cases.

Those sentenced to death have inadequate access to the courts to appeal:
· The appeal process in Virginia is riddled with archaic and unfair procedural rules which block
  access to the courts. The "21-Day Rule" is a prime example:

· As long as there is a limited time for presentation of evidence of innocence - especially in
  Virginia, with its still severely limited time of 90 days**– execution of innocent citizens will occur.
  This new, seemingly "token" expanded limit will not even take effect for another year – the most
  compelling reason for a moratorium!

· In addition to the time limit, the bill as written requires the defendant to have pled "not guilty".
  We are all familiar with reasons why an innocent client might have pled guilty – in fact, the
  system encourages this practice through plea bargaining.

· Death penalty cases usually pass through three stages of review. The second stage is the state
  collateral review. Typically, the Virginia Supreme Court – unlike most other states- denies the
  petition for this review without a hearing.

** Legislation passed in 2003 extended the time for presenting new evidence of actual innocence 
to 90 days after conviction, but no longer.

Virginia may end up continuing to execute mentally retarded prisoners in spite of the U.S. Supreme Court’s decision against such executions:
· During the 2003 General Assembly session, a mental retardation sentencing bill was passed,
  stating that the jury would determine mental retardation after conviction but before sentencing.
  This means that a "death qualified jury" would be making the decision about whether the person
  was mentally retarded after it had already convicted him or her of a capital crime, at a time when
  they are naturally more prejudiced against the defendant.

· There are no procedures established for applying this law retroactively: those mentally retarded
  inmates on death row before the Supreme Court decision could still legally be executed.

A moratorium on executions would allow time to consider whether Virginia should continue the practice of executing juvenile offenders:
· Many of the same arguments that led the U.S. Supreme Court to ban execution of the mentally
  retarded apply to the execution of juvenile offenders

· Recent studies have found that the adolescent brain may not fully mature until sometime
  between 18 and 22. The areas that develop last are those that control impulsive behavior and mature
  decision- making.

General Assembly  |  2004 Legislation
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