Virginia Executes Inmate with Appeal Still Pending Before Supreme Court

On October 1, Virginia executed Alfredo Prieto (pictured) before the U.S. Supreme Court had decided whether to grant a stay on his challenge to Virginia's use of an execution drug obtained from Texas Department of Criminal Justice. Robert Lee, Prieto's attorney, said, "The Justices of the Supreme Court of the United States were considering Mr. Prieto’s request for a stay of execution but the Virginia Department of Corrections went ahead with the execution without waiting for a decision from the Justices." Earlier in the day, U.S. District Court Judge Henry Hudson held a hearing on a challenge to Virginia's lethal injection procedure. Virginia used compounded pentobarbital obtained from Texas, without any inquiry into the manufacture, purity, or storage of the drug. Prieto's lawyers raised questions about the safety and efficacy of the drug. Hudson denied the appeal and lifted a preliminary injunction that had put the execution on hold. The U.S. Court of Appeals for the 4th Circuit denied Prieto's appeal of this issue. Prieto's lawyers then filed a petition for review with the U.S. Supreme Court, but Virginia carried out the execution before the Court could issue a decision. The last time a state executed an inmate with appeals still pending was January 29, 2014, when Missouri executed Herbert Smulls.

Spate of Scheduled Executions Highlight Broad Issues in Capital Punishment

An unusually high number of executions are scheduled for late September and early October - five states intend to carry out six executions in nine days. Pieces in the Los Angeles Times and the Washington Post describe the larger issues raised by the cases in this "burst of lethal activity." In the Los Angeles Times, Scott Martelle examined the three executions scheduled for consecutive days in Georgia, Oklahoma, and Virginia, concluding, "So here we have three pending executions: One of a woman who received a harsher penalty than the co-conspirator who committed the murder; one of a man who very possibly is innocent; and one of a man whose intellectual disability should make him ineligible for the death penalty." Mark Berman, of the Washington Post, noted the overall rarity of executions and the small number of states that carry them out. He says "most states have ... not been active participants in the country's capital punishment system" and "executions remain clustered in a small number of states, a dwindling number of locations accounting for an overwhelming majority of lethal injections." Berman notes that the number of executions, the states executing inmates and the number of death sentences have all fallen significantly since the 1990s and the upcoming executions share one common characteristic: "The states planning the executions this week and next — Georgia, Oklahoma, Virginia, Texas and Missouri — are among the country’s most active death-penalty states since the death penalty was reinstated by the U.S. Supreme Court in 1976." 

Virginia Governor Denies Reprieve for Inmate Who May Have Intellectual Disability

Virginia may execute Alfredo Prieto on October 1 despite concerns by disability advocates that he may be intellectually disabled. Governor Terry McAuliffe (pictured) announced on September 28 that he would not grant Prieto a reprieve. Gov. McAuliffe issued a statement saying "It is the Governor’s responsibility to ensure that the laws of the Commonwealth are properly carried out unless circumstances merit a stay or commutation of the sentence. After extensive review and deliberation, I have found no such circumstances, and have thus decided that this execution will move forward." Prieto's attorneys say he is intellectually disabled and therefore ineligible for execution and that an adverse Virginia state court determination of that issue employed a scientifically invalid strict IQ cutoff score. Later, in 2014, the U.S. Supreme Court ruled that the use of strict IQ cutoff for ruling out intellectual disability without considering other factors violated the Eighth Amendment. The Arc of Virginia, an advocacy group for people with intellectual and developmental disabilities, said, "We believe that allowing Mr. Prieto’s execution to go forward on the evidence as it stands is unjustified scientifically and would endorse a misunderstanding of intellectual disabilities that was refuted long ago." 

Representation Improves, Death Sentences Dramatically Drop in Virginia

The number of people sentenced to death in Virginia has plummeted from 40 in the years 1998-2005 to only 6 from 2006 through April 2015. A recent study suggests that improvements in capital representation in the state may have played a significant role in that dramatic change. In 2004, Virginia established four regional capital defender offices, which are completely devoted to handling death penalty cases. The year before the defender offices opened, Virginia juries imposed 6 death sentences, but have not imposed more than 2 in any year since.  This mirrors the experience in other jurisdictions in which defendants have been represented by institutional capital defenders. In addition to better outcomes at trial, "[a] capable and vigorous defense no doubt accounts — at least in part — for the increased willingness of prosecutors to resolve capital cases short of death," University of Virginia law professor John G. Douglass said in his study.

NEW VOICES: Effects of the Death Penalty on Those Who Carry It Out

Four retired death-row prison officials - two wardens, a chaplain, and an execution supervisor - recently described the effect that carrying out executions has had on them. Frank Thompson (pictured), who served as a warden in Oregon and Arkansas, said he believed in capital punishment until he thought "about those flaws in the back of my mind that I knew existed with capital punishment. It’s being administered against the poor; it lacks proof that it deters anything." He trained his staff to carry out executions, but, "I realized that I was training decent men and women how to take the life of a human being. In the name of a public policy that after all these years couldn’t be shown to increase the net of public safety." Terry Collins spent over 32 years working in corrections, including time as the director of the Ohio Department of Rehabilitation and Correction. He said seeing exonerations gave him concerns about the death penalty: "[T]the system does make mistakes. I don’t think you can make a mistake when you’re talking about somebody’s life." Jerry Givens, who oversaw 62 executions in Virginia, raised similar concerns, "I knew the system was corrupted when we exonerated Earl Washington Jr. from death row...You have two types of people on death row. The guilty and the innocent. And when when you have the guilty and the innocent, you shouldn’t have death row." Rev. Carroll Pickett was a chaplain on Texas's death row for 15 years and during 95 executions. He commented, "Standing by the gurney almost 100 times, and watching innocent men killed, watching repentant men killed, and seeing the pain among families and men and my employee friends, cannot leave my memories."

NEW VOICES: After 36 Executions, Former Virginia Attorney General Now Opposes Death Penalty

During his tenure as Attorney General of Virginia from 1998 to 2001, that state executed 36 people. Now Mark Earley opposes the death penalty. The former Attorney General recently discussed his change of opinion in an article for the University of Richmond Law Review. He wrote, “If you believe that the government always ‘gets it right,’ never makes serious mistakes, and is never tainted with corruption, then you can be comfortable supporting the death penalty.” He said, "Overseeing a legal system that put so many to death with such efficiency eroded me," but political concerns he had as Attorney General "walled off my doubts." Since leaving office, Early said he has "come to the conclusion that the death penalty is based on a false utopian premise. That false premise is that we have had, do have, and will have 100% accuracy in death penalty convictions and executions." He highlights two cases that raised significant concerns for him: the exoneration of Earl Washington, which took place during Earley's tenure as Attorney General, and the recent ruling vacating the conviction of George Stinney, who was executed in South Carolina in 1944 at the age of 14. Earley concludes, "I can no longer support the imposition of a penalty so final in nature, yet so fraught with failures."

Recent Developments in Death Penalty Legislation

Several state legislatures have recently taken action on bills related to capital punishment. In Arkansas, a bill to abolish the death penalty passed the Senate Judiciary Committee on a voice vote. Bill sponsor Sen. David Burnett, a former prosecutor and judge who both sought and imposed the death penalty, said, "It's no longer a deterrent. It's a punishment that's actually broken. It doesn't work. And it costs a huge amount of money to try and prosecute those cases." Arkansas last carried out an execution in 2005. A similar bill in Montana was approved by a House committee with bipartisan support, but failed on a tied vote (50-50) in the full House. Before the vote, repeal supporter Rep. Mitch Tropila said, “This is an historic moment in the Montana House of Representatives. It has never voted to abolish the death penalty on second reading. This is a momentous moment, and we are on the cusp of history." Montana's last execution took place in 2006. Virginia legislators rejected a bill to shield information related to lethal injection as state secrets. The House of Delegates voted 56-42 against the bill, which would have exempted “all information relating to the execution process,” including the source of execution drugs and the buildings and equipment used for executions, from open records laws. Del. Scott A. Surovell commented, "Anytime somebody in the government wants to restrict information about what the government is going to do, I think we need to ask some really difficult questions and get some straight answers before we grant them that right.”

NEW VOICES: Oliver North - Long-Time Opponent of the Death Penalty

Oliver North, a former Marine and noted conservative leader, has opposed the death penalty for many years. In a recent interview, he said, "I’m a 'law and order' guy. Don’t get me wrong. Individuals need to be held accountable...but I have always felt… and always said that there are very serious questions about the justice of the death penalty. Just a few months ago, a man (Glenn Ford) who was on death row for thirty years was found to be innocent." When North ran for U.S. Senate in Virginia in 1994, he took an anti-death penalty stance, but he said it did not hurt his campaign, adding, "I got the endorsement of every police organization in Virginia [when I ran] and they all knew exactly where I stood on that issue." North called for further discussion: "I still think it is the kind of thing that deserves an informed debate in our society and our culture. What is it about us that says that we have to affect that kind of retribution? Is it really a deterrent? It doesn’t seem to be."