Pace of death sentences, executions slows in Va.
Virginia has sent only six people to death row in the last nine years after sending 40 over the previous eight years
By Larry O'Dell
RICHMOND, Va. — A prosecutor's decision not to seek a death penalty for the man accused of abducting and killing a University of Virginia student is emblematic of capital punishment's decline across the country and in the state that once operated one of the busiest execution chambers in the nation.
Virginia has sent only six people to death row in the last nine years after sending 40 over the previous eight years, according to statistics compiled by the Death Penalty Information Center. As a result, the state only has eight inmates awaiting execution — down from a high of 57 in 1995 — and unless something changes, Jesse Matthew Jr. won't be joining them.
Matthew is charged with first-degree murder in the death of 18-year-old Hannah Graham. He also is charged with abduction with intent to defile, which is the first of 15 offenses listed in state law that can elevate a murder count to capital murder. Albemarle County's chief prosecutor has declined to say specifically why Matthew, who is due in court for a hearing on pretrial matters Tuesday, was not charged with capital murder.
Matthew's case, perhaps the most high-profile murder case in Virginia since the 2002 Washington-area sniper shootings that left 10 dead, is playing out as the death penalty is on the wane. Virginia has slipped from second to third nationally — behind Texas and Oklahoma — with 110 executions since the U.S. Supreme Court reinstated capital punishment in 1976. No executions are currently scheduled.
Legal experts say there are many reasons for the deceleration of the death penalty in Virginia, but perhaps the biggest is the establishment in 2004 of four regional capital defender offices staffed by attorneys and investigators who devote all their time to death penalty cases.
"In the past, an awful lot of people who ended up on death row had abysmal representation," said Steve Northup, a lawyer and former executive director of Virginians for Alternatives to the Death Penalty. "Prosecutors were able to take advantage. Now prosecutors know capital defendants are going to be well represented."
It's no coincidence, experts suggest, that the sharp downturn in death sentences began the year the capital defender offices opened. The year before, Virginia sent six people to death row. No more than two death sentences have been imposed in any year since.
A recent study by University of Virginia law professor John G. Douglass concluded that the number of capital murder charges has declined, but not as rapidly as the number of death sentences. Virginia prosecutors obtained an average of 34 capital murder indictments a year between 1995 and 1999, but only 22 per year from 2008 through 2013. The percentage of those cases going to trial fell from 38 percent in the late '90s to 19 percent, suggesting more cases are being resolved by plea negotiations resulting in punishment less than death.
"Virginia prosecutors have not abandoned the death penalty," Douglass wrote. "Instead, increasingly, they bargain with it."
Douglass agrees with others who cite establishment of the state-funded capital defender's offices, which operate on a budget of $3.5 million a year, as one of the reasons Virginia's death row has been steadily shrinking.
"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," Douglass wrote.
Doug Ramseur, the central region's capital defender, said one of the reasons more cases are being plea bargained "may be recognition that juries are giving out the death sentence less." That's due in part to a growing acceptance of life without parole as a reasonable alternative to death, Ramseur and other experts said.
"When a jury is assured a truly dangerous individual will never be released from prison, they feel more comfortable turning down a death penalty," said Michael Stone, who succeeded Northup as head of the state's leading anti-capital punishment organization.
The case of Washington-area sniper Lee Boyd Malvo is one high-profile example, Stone said. Prosecutors sought the death penalty, but the jury sentenced Malvo to life without parole. Stone said Malvo almost certainly would have been sentenced to death if life without parole had not been an option.
Experts also say public opinion about the death penalty is shifting, partly because more than 150 people sentenced to die have been exonerated.
"That has shaken the confidence of jurors and the public so they are willing to convict people but not sentence them to death as much," said Richard Dieter, executive director of the Death Penalty Information Center, a Washington-based advocacy gropu that opposes capital punishment.
Dieter noted in a recent report that national Gallup polls show support for the death penalty has tumbled from 80 percent in 1994 to 63 percent. Meantime, death sentences nationally have declined from a peak of 315 in 1996 to 72 last year. Even Texas, by far the execution leader with 524 since 1976, has seen death sentences dwindle to fewer than a dozen a year after peaking at 43 in 1994.
The trend has not escaped the notice of New York Law School professor Robert Blecker, one of the nation's most outspoken capital punishment supporters.
"I'd like to think it has to do with prosecutors becoming more discriminating and not going for death on every death-eligible crime, only going for it for the worst of the worst of the worst," Blecker said.
The wishes of the victim's family and the huge amount of time and money required to pursue a death penalty are other factors to consider, Dinwiddie County Commonwealth's Attorney Ann Cabell Baskervill said, although neither concern is dispositive. Baskervill is seeking the death penalty for Russell E. Brown II, who is charged in the shooting death of Virginia State Trooper Junius A. Walker. The trial is set for next year.
"If you think you're not going to be successful, it's foolish to seek it," Baskervill said of the death penalty. "As a steward of resources and what society wants, that comes into play. It's an awful lot to drag the community through, especially when it could go the other way."