Tuesday, February 2, 2021

Considering the death penalty in Virginia

The Virginia Senate is considering a bill, SB 1165, to repeal the death penalty.

I have not listened to most of the debate, but I listened near the end today, and in hearing the Senator from eastern Fairfax, the two most compelling points I heard him make were (1) death penalty expansion is last on law enforcement's legislative priorities, and (2) there has not been a death penalty conviction since 2012.

Neither of those points, however, address the fact that having the death penalty on the books is a strong deterrent in the commission of crime. Some criminals adjust how they commit crimes based on the types of punishment they may face. The death penalty is the most significant factor as it is the ultimate punishment man can impose under law.

Ten years ago, I stood for office in that body, and I took a position against the death penalty. I said then, and I say now, sending someone off to eternity is the most final decision. As heinous the crimes may be that some offenders commit, I want all to have chance to hear the good news of eternal mercy and time to consider that decision.

I remember one forum several northern Virginia candidates attended, and I was the only Republican. The group's issue set was not considered home turf for a conservative. One of the questions they asked was about extending the death penalty to accomplices in committing murder. To me, that was an easy question. While that is an evil thing to do, if someone didn't actually commit murder, it is not for the law to punish them as if they did.

The question of the death penalty as a whole on principle is a larger question. Is one allowed to be both opposed to the death penalty and in favor of having the death penalty on the books? 

To some, that may sound like how some sound on abortion: personally opposed, not in favor of telling a jury they can't use that option. I would see that as very different from abortion as the unborn child has committed no crime.

To others, opposing in principle but not in law may sound too gray, not black-and-white enough: either you are or are not in favor of the death penalty. If that bill were put before me, how would I vote? I don't know. I glanced at the text, and it's a long bill. I'm not sure why, but it seems to be doing a lot more than removing the death penalty from the books. If it were just a clean death penalty removal, I'm still not sure.

Leaving the death penalty on the books is not a guarantee it gets used.

Removing the death penalty from the books is a guarantee it does not.

Even if this particular punishment is rarely requested or used, it still has an effect being on the books. If a criminal is uncertain of how severe the punishment for his crime may be, that uncertainty has a proportionately deterring effect on the severity of the crime he commits. Uncertainty is a disruptor of plans, and deterring the plans of a criminal is a good thing for the commonwealth.

Another concern I've heard raised about the death penalty is its uneven application. Sometimes it is justly applied. Sometimes it is unjustly applied as people are wrongly convicted, a huge concern. Sometimes the circumstances merit the punishment, but the punishment is applied and not applied with observable variation correlating to demographic differences.

Perhaps there could be a formal pause in the execution of the death penalty, even if people may still be sentenced to it, while valid concerns are thoroughly addressed.

At the very least, and considering the length of this bill, I'd say it is a good thing to consider criminal justice reform in Virginia. Are we doing all we can to ensure the justice system is indeed just? It's a good question to ask, and one I think we need to ask and consider a lot more.

The death penalty has served a purpose for a long time, including as circumstances of the larger cultural context have changed. It has endured through centuries which is not a surprise considering precedent for it goes all the way back to the Old Testament Scriptures.

Another consideration is the future. What about as circumstances change again? While it may not feel as needed now, what if that need increases? What if the economic impact of the pandemic becomes more far-reaching and cuts deeper into how we operate as a society? What if decades of appeals and decades of life sentences become part of a larger set of current public policies and expenditures that become noticeably unsustainable?

Perhaps it would be a misapplication of justice or jurisprudence, but what about permanently having both the option to sentence someone to death and no option to carry that out? Those who advocate repeal frequently offer “life without parole” as the alternative consequence. Does that mean as much as actually formally hearing they deserve death even if they are not put to death? I don't expect that would be a long-term viable answer, but I think asking the question could produce a valuable conversation and more clarity on how to reach a conclusion.

Right now I feel like I have more questions than answers. I could make a decision right now if I had to, but I don't. Soon the legislators will, Lord willing. Perhaps this is odd, but I'm comfortable with it going either way. There's an axiom among legislators to vote their conscience first, their constituency second, and their party third. While this may be a matter of conscience for many on both sides, I could see deferring to my constituency on this matter.

If we were to repeal the death penalty and see that followed by a rise in violent crime, it would be worth reconsidering that decision. Some may prefer not to allow for that possibility.

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