Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, July 22, 1990 TAG: 9007230287
SECTION: EDITORIAL PAGE: B-3 EDITION: METRO
SOURCE: WILLIAM S. GEIMER
DATELINE: LENGTH: Long
Further, the misinformation was presented as a "consensus" among legal experts. In truth, the only consensus is among prosecutors, deputy attorneys general and one respected law professor who either was misquoted or is badly misinformed.
The essence of the myth goes like this: "In spite of massive support for the death penalty, it remains little more than words in a law book. The main reason for this is a combination of careful, lengthy review by the courts to make sure that only the worst offenders get executed, and delaying tactics by defense attorneys who raise frivolous claims."
That statement is false in its entirety.
At issue is review by appellate courts of trial-court verdicts to make sure they were rendered in accordance with the rule of law.
In capital cases, the law provides that not every person who commits murder may be sentenced to death. The legal system is obliged to choose among murderers, some to live and some to die.
The most recent to die was Richard T. Boggs, who was electrocuted Thursday night at the State Penitentiary in downtown Richmond.
Whether we might wish that all murderers be executed within 24 hours of conviction, or that there be no death penalty at all, does not matter. It is about the operation of this legal system that the prosecutors and deputy attorneys general are complaining.
However much time is consumed, there is no meaningful appellate review of death sentences in Virginia. After the death penalty was reinstated in the 1970s, capital trials were conducted in such a fundamentally unfair manner that federal courts for several years granted relief to appealing prisoners about 70 percent of the time.
Since then, the trials have not become fairer. The courts have simply changed the rules. They have constructed a labyrinthian procedural maze for defendants, announced special rules to speed the process, required virtually no standard of professionalism for defense attorneys, and refused altogether to review many important claims.
If you lost a lawsuit over a piece of land against an influential developer, the case would receive more careful review by the appellate courts than do the constitutional claims of death-sentenced prisoners.
Let's examine the myth:
Massive public support for capital punishment.
Politicians and the public have been reinforcing each other's ignorance on this for years. The "massive" public support is for the idea of the death penalty, not the lottery that is the real, working death penalty.
What happens when people finally get a little accurate information about the criminal-justice system and the availability of alternatives? Surprise: A recent Field Institute poll shows 59 percent of Virginians favor life imprisonment without parole, coupled with restitution to victims, instead of the death penalty.
One wonders what the level of support would be even for the present law if the truth were known that, under it, some murderers will never be eligible for parole if sentenced to life instead of death and many others cannot be considered for parole until they have served 30 years?
"Careful" review.
Capital-murder convictions and death sentences are reviewed by the Supreme Court of Virginia. In reviews of almost 80 cases, that court has set aside death sentences fewer than a half-dozen times. Particularly telling is that, as to the two "aggravating" factors in our law that are supposed to separate murderers who may be executed from those who may not, the court has never found the factors to have been improperly applied to put any defendant in the death group.
There is another procedure, called state habeas corpus, again involving circuit courts and the Supreme Court of Virginia. Since reinstatement of the death penalty, no death-sentenced prisoner ever has obtained relief under this procedure.
If that record actually reflected the degree of accuracy achieved in following the law of choosing among murderers, one might conclude that Virginia trial judges and attorneys are a model for the nation. If true, it would be remarkable - in view of the fact that there is no regularized system for the appointment of defense attorneys, no set of standards or qualifications they must have to defend one whose life is at stake, and until recently a limit on their compensation.
Furthermore, unlike other Death Belt states (Virginia is fifth in the nation in actual executions), the commonwealth spends no public money on educating defense attorneys about the law. Inadequate review rather than accuracy in following the law is the likely explanation for our seemingly near-perfect record in dealing out death.
The support cited in the article for the proposition that "appellate court judges at all levels continue to give intense scrutiny to death cases" is laughable. The article noted that the conservative U.S. Supreme Court recently invalidated a key portion of North Carolina's death-penalty law, revoking the sentences of dozens of prisoners.
The case, McCoy vs. North Carolina, was the only opinion adverse to the states in the entire term, and came about only because the Supreme Court of North Carolina chose to thumb its judicial nose at an earlier U.S. Supreme Court opinion in Mills v. Maryland. The remainder of U.S. Supreme Court opinions this year can fairly be characterized as telling the states they can execute whom they wish, and preventing federal courts from giving relief in spite of fundamental violations of the U.S. Constitution.
The "interminable" review.
It is true that the appeals process in capital cases is time-consuming. Unlike some countries, we do not execute our prisoners at sundown on trial day.
Unfortunately, the time we spend is not consumed in an effort to ensure that the law has been followed. Instead, the real scenario goes more like this: A death-sentenced prisoner raises a claim which, if true, means that he was condemned to die in a manner not permitted by law. Members of the public might assume that the appellate process, brief or lengthy, would be spent answering the question that would seem most crucial: Is the claim true?
That is not what happens. Instead, the time is spent determining whether the claim is to be decided at all, with the attorney general vigorously arguing that because the defendant's untrained, appointed attorney did not follow some rigidly applied rule of Virginia procedure, the prisoner should be put to death without having the issue decided. The most prolific purveyor of expensive, time-consuming legal technicalities in the commonwealth is its attorney general.
Finally, we ought at least to evaluate the life-or-death appeals process in a rational context.
In the legal battle to close the Kim-Stan landfill, the attorney general is a party and the appeals process is continuing. Rest assured that the highly capable attorneys for Kim-Stan will ensure there is careful review of the manner by which the commonwealth seeks under law to kill the dump. It is proper that they do so, even if our emotional reaction is, "Law be damned, make 'em pay."
Those who cherish the concept of a rule of law as more than a slogan have a duty to confront public misconceptions and urge a process that devotes much more attention to the legality of killing a human being than it does to killing a landfill or a corporation. Many of us are not doing that. Our failures, like the recent article, help the myths about the death penalty live on.
by CNB