The Pew Charitable Trusts

A debate over capital punishment has flared up in what many would consider an unlikely place -- the Virginia legislature. The Old Dominion is second only to Texas in the number of convicts its puts to death. But state lawmakers are now taking a second look at the issue. 

Virginia, which ranks second in the nation in executions, is considering bills in this year's legislative session that would suspend or abolish capital punishment. While it's almost certain the General Assembly will not go that far, there is wide support for proposals to help guard against putting an innocent prisoner to death:

The Old Dominion has executed 81 prisoners since 1976, the year the Supreme Court reinstated capital punishment, according to the Death Penalty Information Center. Twenty-nine convicts currently sit on death row. Only Texas has executed more prisoners than Virginia.

Virginia legislators appear likely to relax the state's 21-day rule which prevents courts from reviewing new evidence more than three weeks after a prisoner has been sentenced. In the wake of the recent exoneration of Earl Washington Jr., a former death row inmate, both Republicans and Democrats back legislation that would give prisoners more time to submit evidence of their innocence to state court.

Last October, DNA evidence proved that Washington had been wrongly convicted a 1982 rape and capital murder. He is still incarcerated for another crime.

"Most other states have a mechanism where you can get such evidence of actual innocence that's discovered after a trial back before the court," said Delegate James F. Almand, D-Arlington, chief sponsor of a bill would amend the rule. "We need to make sure our system is fair and just. And if it's not, we need to make corrections."

Sen. Mary Margaret Whipple, D-Arlington, also supports a correction in the 21-day rule. "That's a law that definitely needs to be revised," she said. "I certainly hope we're going to see modifications in the rule and the handling of DNA evidence."The Virginia State Crime Commission, headed by Sen. Kenneth W. Stolle, R-Virginia Beach, has also recommended amending the 21-day rule, but its plan is less sweeping than Almand's proposal. The commission's plan would preserve biological evidence and allow prisoners to seek court approval for further DNA testing to prove their innocence.

Almand said he thinks the General Assembly will pass Stolle's bill this session.

"That takes care of part of the problem with Virginia law, but it doesn't deal with after-discovered evidence of a non-biological nature," he said.

Attorney General Mark Earley supports the Crime Commission's plan. But he has not called for an end to executions. "The Attorney General stands to uphold Virginia law," said J. Randall Davis, Earley's deputy director of communications.

Other measures would put a moratorium on executions until the General Assembly's investigative arm finishes its study of the system. Three separate moratorium bills have been introduced.

Of the 39 states that currently impose capital punishment, legislatures in 19 states, including Illinois, neighboring Maryland and New York, have instituted, or at least considered, suspending imposition of the death penalty.

However, the session's most surprising proposal came from Delegate Frank D. Hargrove Sr., R-Glen Allen, a noted conservative and former death penalty proponent: He wants to abolish capital punishment.

"I voted for the death penalty on numerous occasions. But I never was really certain it was the correct thing to do. There was a huge chance of making a mistake and executing the wrong individual," Hargrove said

He said he did not believe the death penalty served as a deterrent for crime.

"There are obviously individuals who perpetrate crimes on the broader population that should be taken out of circulation," Hargrove said. "Incarceration for life without chance of parole is the way to do it."

Although his bill surprised many people, Hargrove does not regret sponsoring it.

"It has negative political consequences, particularly for a conservative Republican," he said. "People think I've lost my mind. Well, I feel better being half crazy then."

The debate over the death penalty has fueled the fervor of capital punishment foes such as Virginians for an Alternative to the Death Penalty, a Charlottesville-based organization that has fought capital punishment since 1991.

In January, VADP sponsored a rally in front of the Capitol to support Hargrove's bill. The group also has launched a campaign against capital punishment using billboards and the Internet [http://www.vdap.org].

"Human beings are fallible, and the death penalty assumes that decisions humans make are infallible," said Richard C. Armstrong, a lawyer from Charlottesville and VADP member. "We make mistakes all the time, and I'm not going to rely on a system that makes mistakes to say we have a right to kill someone."

It looks like a change in the 21-day rule is about as far as the legislators will go, however. This week, a subcommittee of the House Courts of Justice Committee likely killed prospects for the death penalty abolition or moratorium bills at least this session. In one motion, it voted on Tuesday to recommend that the full committee pigeonhole Hargrove's bill. In another motion, the subcommittee voted to recommend that the full committee keep the moratorium bills from going to the House floor.