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Virginia Death Penalty Vetoes


Virginia Governor Tim Kaine announced that he has vetoed five bills relating to the death penalty. Although there are five bills, they represent, in essence, two proposals. One of them (HB2348 and SB1288) modifies Virginia's "triggerman rule." The other (HB 2750, HB 2347, and SB 1116), includes in the definition of capital murder the killing of a judge or witness for the purpose of interfering with official duties or testimony. Gov. Kaine's statement is that he does "not believe that further expansion of the death penalty is necessary to protect human life or provide for public safety needs."

To merely ask whether legislation expands or contracts the death penalty is simplistic. All capital murder statutes since Furman v. Georgia, 408 U.S. 238 (1972) have, and are required to have, a mechanism that narrows the class of murderers eligible for the death penalty to some meaningful subset of the class of all murderers. The purpose is to make the death penalty less arbitrary by narrowing the jury's consideration of that penalty to cases defined in some objective way to a group that the legislature determines are generally the worst kind. To perform this function, the narrowing factors should neither be so broad as to sweep in most murders nor so narrow as to arbitrarily exclude murders that do belong at the aggravated end of the range.

Virginia's current death penalty law generally excludes anyone who is not a "principal of the first degree," meaning the person who actually did the killing. Distinguishing between degrees of principals and between principals and accessories before the fact is archaic. See generally 2 W. LaFave, Substantive Criminal Law, § 13.1(e) (2d ed. 2003). The triggerman is not uniformly more culpable than others involved in the murder, as the D.C. sniper case made abundantly clear. The leader of a conspiracy who orders another to kill is more culpable, not less, than the person who carries out the order. Virginia law at present allows the death penalty for nontriggermen only in cases of murder for hire, organized crime, and terrorism. John Allen Muhammad was sentenced under the third exception. In Maryland, which has a stricter triggerman rule, he was not eligible for the death penalty at all.

The vetoed legislation would have expanded the rule to allow the death penalty in cases otherwise eligible if the nontriggerman shared the intent of the triggerman to commit a willful, deliberate, and premeditated murder. By allowing the same penalty for both perpetrators when they are equally culpable and eliminating an arbitrary exclusion, the bill would have made Virginia's death penalty a better fit between culpability and sentence. In cases where the accomplice really is less culpable, that fact can be considered by the jury as a mitigating circumstance.

The judge/witness bill is of lesser magnitude, but such cases are rare enough that this proposal cannot reasonably be considered a significant expansion of the death penalty. The Governor's purported reason does not justify his veto.

According to this AP story, the bills passed by a sufficient margin to override the vetoes.


"All capital murder statutes since Furman v. Georgia, 408 U.S. 238 (1972) have, and are required to have, a mechanism that narrows the class of murderers eligible for the death penalty to some meaningful subset of the class of all murderers."

But one big problem is that the statutes don't meaningfully limit eligibility (see Creech, unconstitutional "utter disregard" aggravator constitutionally limited with meaningless language), or allow proper weighing (see the upcoming decision in Smith).

Arave v. Creech, 507 U.S. 463 (1993) reaffirmed the rule that an excessively vague eligibility circumstance is unconstitutional. The Court found that the Idaho Supreme Court had given the circumstance in question a sufficiently clear meaning by a narrowing construction.

Smith v. Texas has nothing to do with eligibility circumstances at all. It is a product of the Court's contradicting itself over what the state must do regarding mitigating circumstances.

Kaine should have simply been honest. He could have simply said that he is opposed to the death penalty and while he'll follow the law, he's not going to make more death sentences likely.

Instead, we have these weak justifications.

Hopefully, his veto will be overridden on the "triggerman" rule, the validity of which does not bear serious analysis. The first problem with it is that it makes it more difficult to seek death in crimes where people act in concert, as defense attorneys will argue that the other guy fired the shot. Since criminals acting in concert is far more dangerous than people acting alone, it's curious that we would have a rule that makes handing out death to criminals acting in concert.

Second, it is very easy to come up with all sorts of factual scenarios where a "triggerman" is far less culpable than a "non-triggerman".

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