John Whitehead's Commentary

As capital punishment studies have shown, whether or not you are sentenced to death often has little to do with the crime and everything to do with your race, where you live, and who prosecutes your case.

This is especially so in Virginia, which is one of the most pro-death penalty states in the country, second only to Texas in the number of executions carried out since 1976. Nevertheless, despite the fact that the Commonwealth continues to labor under an egregiously flawed (and expensive) justice system--and is once again in the throes of a massive budgetary crisis, the Virginia General Assembly is pushing through legislation that will only serve to worsen this state of affairs by expanding its death penalty. The various proposals to expand the death penalty include adding fire marshals, assistant fire marshals, auxiliary police officers, and uncompensated auxiliary police officers to the capital murder statute. One bill would also abolish Virginia's "triggerman rule" by making accomplices in capital murder cases eligible for the death penalty.

At a time of economic uncertainty, when Americans are looking to their elected representatives for fiscally sound, responsible leadership and a wise use of taxpayer funds, here are five good reasons to minimize, rather than expand, the applicability of the death penalty--especially in the Commonwealth of Virginia, which currently faces a roughly $4 billion budgetary shortfall.

Cost: Numerous studies show that increased litigation costs associated with death penalty cases far outweigh the savings of not having to house a prisoner for the duration of his/her natural life. A recent Urban Institute study found that, since 1978, Maryland has had to foot, on average, a litigation-related bill that is $1.9 million more per capital murder-eligible case when pursuing a death verdict than when opting not to. Comparably, under such a scenario in Virginia, and not including cases where the death penalty was sought but a death sentence not garnered, that adds up to roughly $229 million that could have been used elsewhere had the death penalty not been in effect.

Lack of Deterrent Effect: Based on empirical studies, no correlation between prosecutorial availability of the death penalty and lower murder rates has been established. In fact, the opposite correlation exists. According to1997-2007 data from the Death Penalty Information Center, the murder rate in states without the death penalty was nearly 40% lower than states with the death penalty. Additionally, from 1990-2007, states without the death penalty saw a 65% drop in murder rates while states with the death penalty netted only a 39% decrease. While one might be tempted to argue that the death penalty is simply used in states prone to high murder rates, that argument would prove futile against pre- and post- death penalty data from within a single state. Among states that recently discontinued use of the death penalty, no notable increases in murder rates occurred, and some states' murder rates decreased slightly.

Even those within law enforcement question whether a deterrent effect exists. For example, a 1995 national poll of police chiefs found that 67% did not believe that the death penalty significantly reduced crime, while only 1% said that expanding the death penalty should be a primary focus in efforts to reduce crime.

Innocent Individuals Executed: To date, largely as a result of advances in science, technology and advocacy groups bent on seeing justice served, 139 individuals from 26 states, including Virginia, have been proven innocent while sitting on death row, just a short corridor away from the death chamber. In some states, nearly half of those sentenced to death have subsequently been proven innocent. Those are expensive odds when you're dealing with someone's life.

Prosecutorial Misuse: The death penalty is often used as leverage to persuade defendants that pleading guilty is in their best interest. Such use, especially when the crime is only eligible for the death penalty on one peripheral criterion, forces the surrender of fundamental constitutional rights. In this way, an otherwise innocent person might find himself coerced into confessing to a crime in which he had no involvement simply to avoid a death sentence. This is especially true in cases where defendants are highly suggestible, not highly educated, or whose low socio-economic backgrounds prevent them from obtaining qualified legal counsel.

State and Court Trends: Use of the death penalty comes with a heavy financial, moral and constitutional cost yet yields few tangible benefits. Thus, for many of the reasons listed above, states have trended toward decreasing use of the death penalty or abolishing it altogether. New Jersey and New Mexico repealed the death penalty within the last 3 years. There are moratoriums on the death penalty in Illinois and New York. Several other states have limited the use of the death penalty or are currently debating legislation to repeal its use. The U.S. Supreme Court has also ruled the death penalty to be a violation of the Eighth Amendment when applied to minors, mentally retarded or insane individuals, and individuals convicted of lesser charges like aggravated rape.

It is time for our elected representatives to ensure that their legislative efforts reflect the priorities of their constituents. For most Virginians, that means keeping a roof over their heads, food on the table and ensuring that their taxpayer dollars are being used where they can do the most good. At a time when Virginia lawmakers are being forced to eliminate thousands of jobs, slash agencies' spending and trim millions from education and Medicaid programs for the indigent, elderly and disabled, the last thing our representatives need to be doing is adding to the tax burden by expanding the scope of the death penalty.

WC: 939

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

Publication Guidelines / Reprint Permission

John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.