Virginia

Virginia

American Bar Association Issues White Paper Supporting Death Penalty Exemption for Severe Mental Illness

At a December 6-7 national summit on severe mental illness and the death penalty, the American Bar Association Death Penalty Due Process Review Project released a new white paper that it hopes will provide law makers with information and policy analysis to "help states pass laws that will establish clear standards and processes to prevent the execution of those with severe mental illness." The ABA does not take a position on the death penalty itself, but believes that "[i]ndividuals with severe mental disorders or disabilities ... should not be subject to capital punishment." The white paper describes the range of problems faced by seriously mentally ill defendants in capital cases and sets forth possible legislative approaches for exempting them from capital sanctions. The white paper, and ABA President-elect Hilarie Bass in her address to the summit, likened the diminished moral culpability of the severely mentally ill to that of two other "vulnerable groups"—juvenile offenders and defendants with intellectual disabilities—whom the court has exempted from the death penalty.  The application of the death penalty to these defendants, she said, "has been deemed unconstitutional because our society considers both groups less morally culpable than the 'worst of the worst' murderers for whom the death penalty is intended. They are less able to appreciate the consequences of their actions, less able to participate fully in their own defense and more likely to be wrongfully convicted. These exact characteristics apply to individuals with severe mental illness." Citing national polls in 2014 and 2015, Bass said the American public "support[s] a severe mental illness exemption from the death penalty by a 2 to 1 majority." At least 8 state legislatures are expected to consider serious mental illness exemptions in 2017. Among those states is Virginia, where just this year, a jury disregarded prosecution and defense experts in the death penalty trial of Russell Brown and found him guilty despite testimony that he was insane and did not understand the nature or consequences of his actions. The jury ultimately sentenced Brown to life in prison, but, as University of Virginia Law Professor Brandon Garrett explained, "there was no statutory protection available against the highest punishment for a man who, by the admission of all experts, did not have the highest culpability." As does the ABA, Professor Garrett argues that a serious mental illness exemption is a safeguard that is necessary to reduce unfairness in the administration of capital punishment. "If lawmakers believe that we should retain the death penalty in Virginia," he wrote, "we must be confident that we are not sentencing to death severely mentally ill people who cannot be fully blamed for their actions." 

Supported by New DNA Evidence, Man Sentenced to Death in Virginia in 1970 Files Innocence Claim

Sherman Brown (pictured), a man who was sentenced to death in Virginia in 1970 for the murder of a 4-year-old boy, has filed a writ of actual innocence with the Virginia Supreme Court saying that DNA testing on recently discovered evidence clears him of the crime. Brown's petition states: “Recent DNA testing demonstrates by clear and convincing evidence what I have maintained for over 45 years: that I am innocent of this crime. The evidence against me at trial was deeply flawed." Brown was convicted of a 1969 crime in which a woman was knocked unconscious, stabbed, and possibly raped and her 4-year-old son was killed. The woman—who is White—identified Brown—who is Black—as her attacker, and investigators presented expert testimony claiming that a fiber and hair analysis they had conducted implicated Brown. An all-White jury convicted Brown and sentenced him to death. His death sentence was reduced to life in prison when the U.S. Supreme Court struck down the death penalty in 1972 in Furman v. Georgia. Several recent developments have called Brown's conviction into question. The fiber and hair evidence used in Brown's trial was among the flawed forensic testimony recently identified by the FBI as lacking scientific validity. In 2015, the University of Virginia Innocence Project discovered a slide that contains a vaginal swab that was taken from the victim at the time of the crime. DNA testing excluded Brown as the source of a male DNA profile found in the specimen and, with 98% certainty, ruled out the woman's husband. This, Brown says, shows the DNA “came from an unidentified third man and constitutes powerful evidence of [his] innocence.” The Virginia Supreme Court has stayed Brown's petition to permit additional testing to conclusively determine whether the male DNA could have come from the victim's husband. If Brown is exonerated, he would be the second Virginia prisoner exonerated after having been sentenced to death.

Pharmaceutical Companies Reiterate Opposition to Participating in Executions as States Scramble for Execution Drugs

Distribution restrictions put in place by major pharmaceutical companies in the United States against misuse of their medicines and export regulations instituted by the European Union have made it increasingly difficult for states to obtain supplies of drugs for use in executions. However, despite these restrictions, some states have obtained pharmaceutical products manufactured by these companies for use in lethal injections. The Influence reports that the Commonwealth of Virginia obtained lethal injection drugs produced by the pharmaceutical company Mylan--rocuronium bromide, which induces paralysis, and potassium chloride, which stops the heart--from a large North Carolina based drug wholesaler, Cardinal Health. Mylan wrote to the Virginia prisons seeking assurances that use of its medicines in the future would not be diverted to any "purpose inconsistent with their approved labeling and applicable standards of care." Recently, the Associated Press discovered that the supply of vecuronium bromide obtained by the Arkansas Department of Correction was produced by a subsidiary of Pfizer. Pfizer announced in May 2016 that it opposed the use of its products in executions, stating, "Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment." While state secrecy practices leave it unclear from whom Arkansas obtained the restricted drug, Rachel Hooper, a spokesperson for Pfizer, said, "We have implemented a comprehensive strategy and enhanced restricted distribution protocols for a select group of products to help combat their unauthorized use for capital punishment. Pfizer is currently communicating with states to remind them of our policy." As pharmaceutical companies have made their drugs more difficult for states to use, prisons have turned to alternate sources. The Alabama Department of Corrections contacted about 30 compounding pharmacies in an effort to obtain lethal injection drugs, but all refused. Compounding pharmacist Donnie Calhoun said, "For me, as a healthcare professional, I want to help people live longer. The last thing I want to do is help someone die." A Virginia pharmacist who was contacted by the attorney general's office also refused, saying, "No one will do it." Virginia recently adopted a lethal injection secrecy statute that would conceal the identity of its drug supplier, joining many other death penalty states in shielding key information about executions from public scrutiny.

Virginia Governor Rejects Mandatory Use of Electric Chair, Proposes Lethal Injection Secrecy

Virginia Governor Terry McAuliffe rejected a bill that would have employed the electric chair as the state's method of execution if lethal injection drugs are unavailable. Instead, he offered amendments that would permit the Commonwealth's Department of Corrections to enter into confidential contracts to obtain execution drugs from compounding pharmacies, whose identities would be concealed from the public. His proposal is similar to legislation he backed last year that failed because of concerns about its secrecy provisions. McAuliffe's amendments will go before the Virginia legislature during their veto session, which begins April 20. Under Virginia law, the legislature may accept the amendments by a simple majority vote or override the governor's action again passing the unamended original bill by a two-thirds vote in both Houses of the legislature. If there is insufficient support for either option, the original bill returns to the Governor where he can veto it, sign it, or allow it to become law without his signature. Many states have adopted secrecy policies as they seek alternative sources of lethal injection drugs, but a Missouri judge recently ordered that state to reveal the sources of its execution drugs. The amendment proposed by Gov. McAuliffe states that pharmacies' identifying information, "shall be confidential, shall be exempt from the Freedom of Information Act . . . and shall not be subject to discovery or introduction as evidence in any civil proceeding unless good cause is shown." Virginia law currently directs condemned prisoners to choose between lethal injection and the electric chair, but the bill as initially approved by the legislature would have given the state authority to use the electric chair if lethal injection drugs were deemed to be unavailable, even if the prisoner had selected lethal injection.

U.S. on Track for Fewest Executions, New Death Sentences in a Generation

Both executions and new death sentences in the United States are on pace for significant declines to their lowest levels in a generation, Reuters reports. With 25 executions conducted so far this year, and only two more scheduled, the United States could have its lowest number of executions since 1991, significantly below the peak of 98 executions in 1999. Only 8 states have carried out executions in the last two years, down from a high of 20, also in 1999. New death sentences, which peaked at 315 in 1996, declined to 73 last year, and that number is expected to drop even further this year. The slowdowns in executions and new death sentences are just two of several indicators that the U.S. is moving away from capital punishment. Reuters reports that these changes come from a combination of factors, including the high cost of death penalty cases, the recent problems surrounding lethal injection, and improved capital representation in high-use states. Texas and Virginia, two of the death penalty states that historically have been the most aggressive in carrying out executions, stand out as examples of the punishment's declining use. Both states have implemented major reforms in indigent defense in recent years, producing dramatic changes in the death penalty landscape. In Texas, which had 48 death sentences in 1999, juries have handed down only three death sentences so far this year. Virginia, which has executed the highest percentage of death row inmates of any state, is on track to have no death sentences for the fourth consecutive year.

STUDIES: Explaining Virginia's Disappearing Death Penalty

A new study by University of Virginia law professor Brandon Garrett (pictured) shows a dramatic decline in the death penalty in Virginia over the last decade. Virginia has carried out the third highest number of executions since the 1970s and historically has executed a higher percentage of its death-row prisoners than any other state. However, Garrett said there are now fewer than two capital sentencing trials per year and Virginia juries have not imposed any new death sentences since 2011. Reviewing Virginia capital proceedings from 2005 to 2014, Garrett found that "[a]lmost all capital cases are now plea bargained," with only 21 proceeding to a capital sentencing hearing. Juries imposed life sentences in more than half of those cases. Garrett found troubling trends in the evidence used in capital cases, which relied frequently on forms of evidence that have been found to be unreliable or susceptible to abuse, such as unrecorded confessions to police, informant testitmony, or eyewitness identifications. He also found significant geographic disparities in death penalty verdicts. “The ‘new’ Virginia death penalty is almost never imposed and when it is, a death sentence is so freakish that it raises the constitutional concerns with arbitrariness under the Eighth Amendment that U.S. Supreme Court justices have long expressed,” Garrett said. “Virginia may be a bellwether for the future of the American death penalty.” The study also compared sentencing proceedings in the past decade with 20 capital trials from 1996 to 2004 to try to explain the drop in death sentences. Garrett concluded that improved representation - both leading to pleas and in performance at trial - was the primary factor in the decline.   

Amid Unavailability of Lethal Injection Drugs, States Push Legal Limits to Carry Out Executions

"Over time lethal injection has become only more problematic and chaotic,” Deborah W. Denno, a professor at Fordham Law School, told the New York Times, summarizing the ongoing battles that have led states to adopt new drug sources or alternative methods of execution. Several states have obtained or sought drugs using sources that may violate pharmaceutical regulations. For the execution of Alfredo Prieto, Virginia obtained pentobarbital from the Texas Department of Criminal Justice, which purchased it from a compounding pharmacy whose identity is shielded by the state's secrecy law. "Even if the transactions between states do not comply with law, there is no recourse for death-sentenced prisoners," said Megan McCracken, an expert in lethal injection at the Death Penalty Clinic at the University of California, Berkeley, School of Law. Both Nebraska and Ohio received warnings from the Food and Drug Administration that their attempts to purchase sodium thiopental from overseas suppliers violated federal law regarding the importation of drugs. Oklahoma executed Charles Warner in violation of its own execution protocol, substituting an unauthorized chemical, potassium acetate, for the potassium chloride its regulations require. Other states have turned to alternative execution methods: Tennessee reauthorized use of the electric chair, while Oklahoma passed a bill to make nitrogen gas asphyxiation its backup method. Louisiana prison officials also recommended using nitrogen gas, but the state has not taken action on that recommendation. The scramble for lethal injection drugs has delayed executions across the country. A challenge to Mississippi's protocol has halted executions until at least next year. A Montana judge put executions on hold because the state's proposed drug cocktail violated state law, and either the drugs that comply with state law are not produced in the U.S. and may not be imported or the manufacturer refuses to sell the drug for executions. In Oklahoma, the Attorney General requested an indefinite hold in order to review lethal injection procedures after the state obtained the wrong drug for the execution of Richard Glossip.

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.

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