THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Thursday, September 5, 1996 TAG: 9609050001
SECTION: FRONT PAGE: A15 EDITION: FINAL
TYPE: Opinion
SOURCE: PATRICK LACKEY
LENGTH: 85 lines
Imagine the following injustice.
You receive a $50 parking ticket through no fault of your own. The parking meter malfunctioned.
You are told you have 90 days to appeal the fine and you intend to, but 40 days after you get the ticket a new law takes effect retroactively. It limits the time for appeal to 30 days after the ticket was issued.
You are told you cannot appeal the fine because more than 30 days have passed since you got the ticket. That 30-day deadline didn't exist when you missed it, mind you, but you've missed it all the same. Too bad. Pay up.
By such illogic, two Virginia death-row inmates, one from Portsmouth, nearly were executed last week - without the chance to make a final challenge of their death sentences in federal court.
Both had failed to meet a filing deadline that didn't exist when they missed it.
Lawyers for Attorney General James S. Gilmore III opposed stays of execution for nine Virginia inmates in all, arguing that they had missed the new federal filing deadline. That the deadline didn't exist when it was missed struck the lawyers as immaterial. They argued that the law setting the deadline applied retroactively.
In eight of the nine cases, federal judges across Virginia rejected the attorney general's argument, as well they should.
But in the ninth case, in defiance of reason and justice, U.S. District Judge Claude Hilton of Alexandria agreed with Gilmore's office. His ruling applied only to convicted murderer Johnile DuBois of Portsmouth, but it freed prosecutors to argue that the stay for a second death-row inmate no longer was valid.
Fortunately, the day before DuBois and possibly the other inmate were to be executed, a panel of judges from the U.S. Court of Appeals for the Fourth Circuit unanimously ruled that Hilton had erred. As staff writer Laura LaFay reported last Thursday, the judges held that there was no evidence that Congress intended the new statute to operate retroactively.
The law setting the deadline said it applied to ``pending cases'' but didn't say it applied to cases in which the filing deadline already had been missed.
If the two inmates had been denied a chance for a final challenge of their convictions in federal court and been executed, I would like to think the nation would have been appalled.
The present national sentiment could be described, however, as ``Hang 'em fast and hang 'em high.''
We're one of only six nations on the planet that execute juveniles, according to Amnesty International USA. The others are Iran, Iraq, China, Bangladesh and Pakistan - none noted for recognizing basic human rights. We're the last of the Western industrialized nations to still execute prisoners for ordinary crimes (as opposed to crimes against the nation). South Africa stopped last year.
As long as we're executing prisoners, the new filing deadline does make sense, because it speeds up justice.
It was set by the Anti-Terrorism and Effective Death Penalty Act, signed into law on April 24 by President Clinton. It requires death-row inmates to file their federal appeals - also known as petitions for a writ of habeas corpus - within 180 days of the final denial of their state appeals. They get an extra 30 days if a district court judge allows it.
Previously, there was no filing deadline. An inmate might file no final appeal until his hand was forced by the state's setting an execution date. Many delays occur because inmates lack lawyers. DuBois, for example, had no lawyer when his execution date was set. For whatever reasons, cases may drag on for more than a decade.
DuBois was sentenced to death in 1992 for the 1991 murder of a Portsmouth store clerk who was mentally and physically impaired. Reportedly, the clerk wasn't moving fast enough to suit DuBois. At the time, DuBois was on parole for a previous violent offense.
Probably a large majority of Virginians would agree that DuBois deserves to die.
Still, cutting off an inmate's challenge of his death sentence because the inmate missed a deadline that did not yet exist borders on bloodlust.
Speed up justice, by all means. But faster justice can be achieved while protecting inmates' legal rights.
According to one law-review article, at least 23 innocent people were executed between 1900 and 1986. Nationally over the past 20 years, 59 inmates have been released from death row because their innocence was established.
Supporters of capital punishment should oppose shortcuts to speed executions. As Del. Clifton A. Woodrum, D-Roanoke, put it, ``The day they execute an innocent person will be the death sentence of the death sentence.''
Actually, it wasn't in earlier years, but it might be now. MEMO: Mr. Lackey is an editorial writer for The Virginian-Pilot. by CNB