JLARC Study Finds No Racial Bias in Virginia Death Penalty Sentencing

The race of convicted killers is not a factor in death penalty sentences in Virginia, according to a study by the Joint Legislative Audit and Review Commission, the General Assembly's independent investigative and research arm. But the location of the trial is significant. Urban juries are much less likely to impose capital punishment than suburban and rural ones. The study's findings were discussed at a February 4th panel discussion on the death penalty featuring local defense attorneys Steven Rosenfield and Rhonda Quagliana; Albemarle County Commonwealth's Attorney James Camblos; Rob Lee, director of the Virginia Capital Representation Resource Center; and Law School Professor Richard Bonnie, an expert on the death penalty who has also represented persons facing it. Professor Earl Dudley moderated.

Calling the study "scientific" and "methodologically sound," Bonnie summarized the key elements in the JLARC report. "It's really a very good study. It tries to ascertain the facts rather than use them in support of an opinion."

"The main [JLARC] finding is a locational effect," he said. "Holding everything else constant, there is a higher percentage of life-sentence cases in urban areas. In suburban and rural areas, there are more death penalties imposed.

"This effect has received little attention. Is the morally relevant community the state? If so, then there is an unequal application across the state. But maybe the morally relevant community is the local community, as in obscenity cases. Why shouldn't that be a legitimate grounding? This is what the General Assembly should be thinking about. Prosecutors are judging whether the jury in their area will impose a death sentence. Among capitally-eligible cases across the state, 30 percent get the death penalty, but in urban areas it's only 16 percent."

An equally significant conclusion was drawn from race data, he said. "There is no race-of-defendant effect here. That is very important for supporters of the death penalty. Furthermore, there appears to be no race-of-victim effect. Based on studies in other states, that was the real question. The report says no. But there is a red flag in the report statistics that seems to show that a case involving a white victim is three times more likely to result in a death sentence than one with a black victim, controlling for all other factors," Bonnie said. "But the data in the sample—200 cases—is not large enough to establish significance. The report says this is probably a result of 'instability' in the capital sentencing numbers. So maybe it's a pink flag."

Bonnie described the Virginia Supreme Court's appellate review of capital punishment cases as "thin," "as passive as any state in the country—meaning that no state is more passive," "highly deferential to trial courts," and "reluctant to interfere." More "comparison reviews" should be made, he said, to ensure that a death sentence in one case is comparable to other cases where it was imposed. He faulted current reviews for using a narrow comparison sample (the court doesn't look at an adequate sample of cases in which a life sentence was imposed) and urged that reviews include any case in which a capital sentencing hearing was held.

Furthermore, Virginia "applies the most rigid rules of procedural forfeiture," Bonnie said. "There is a substantial likelihood that claims not raised by lawyers at trial will not be reached in post-conviction review." Bonnie has represented four capital defendants, three of whom were ultimately executed and the fourth had his sentence commuted to life by then Gov. Wilder.

In 11 years as Commonwealth's Attorney, Camblos has prosecuted three cases in which the defendant was eligible for the death penalty but in no case has he asked for it. "I've never tried one all the way through. But I'm the only person here who has to answer to the families of the victims of murder. That is a whole different picture. That is down in the trenches."

He suggested that the rural/urban discrepancy in capital sentences reflected desensitization to violence in cities, whereas suburban and rural communities retain a greater sense of outrage over murders. "Albemarle is a liberal community. Not as liberal as Arlington [County], more liberal than Nelson [County]. I wouldn't proceed with a death penalty recommendation in a case unless I thought it would fly with the jury. I've never asked for the death penalty, but if I have to I will. It would be under very very limited circumstances. Some circumstances of some cases are so despicable, so far beyond what we think humans could possibly do."

He said capital cases are so serious that he "gives the defending attorney anything and everything I've got. I don't do that with other cases." Given his experience as a defense lawyer, especially recalling one case in which a client was wrongly convicted on false testimony (though ultimately justice was done), Camblos said he would not consider asking for the death penalty on the basis of witness testimony for which there was no corroborating physical evidence.

Rosenfield argued that capital defendants often get less competent representation and faulted the JLARC report for not assessing that factor. "One percent of Virginia attorneys are publicly disciplined in any year. But for those appointed to represent capital case the figure is 6 percent. One in 10 capital defendants have lawyers who subsequently lose their license to practice. Judges don't choose the legal stars in their communities to handle such cases."

Camblos rejected that claim. "Most judges do choose the stars," he asserted.

"Our system [for handling capital cases] is broken in Virginia," Rosenfield contended. "Trial lawyers defending cases have no right to an investigator. Counties have the police or sheriff. We have no right to know who will come against our client as a witness. In one-third of U.S. capital cases a jailhouse snitch is used in the prosecution's case. We have no right to know that's coming in Virginia. The deck is stacked against criminal defendants here."

Legal assistance to defendants "drops off dramatically" after their conviction, VCRRC director Lee said. "The Habeas process is the quality review process. Many problems with the administration of the death penalty are the result of uneven quality of representation in cases. But all lawyers are not the same."