University of Richmond Law Review Volume 17 | Issue 3 Article 8 1983 Questions Surrounding Virginia's Death Penalty James T. Lloyd Jr. University of Richmond Follow this and additional works at: http://scholarship.richmond.edu/lawreview Part of the Constitutional Law Commons, Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation James T. Lloyd Jr., Questions Surrounding Virginia's Death Penalty, 17 U. Rich. L. Rev. 603 (1983). Available at: http://scholarship.richmond.edu/lawreview/vol17/iss3/8 This Comment is brought to you for free and open access by UR Scholarship Repository. It has been accepted for inclusion in University of Richmond Law Review by an authorized editor of UR Scholarship Repository. For more information, please contact [email protected]. QUESTIONS SURROUNDING VIRGINIA'S DEATH PENALTY I. INTRODUCTION On August 10, 1982, Frank J. Coppola died in Virginia's electric chair. His was the fifth execution1 since the 1976 Supreme Court decision hold- ing that a punishment of death was not unconstitutional per se.2 In the Commonwealth of Virginia, Coppola's was the first execution in over a decade.3 Coppola sought to waive his right to counsel and further appeal, hoping to be allowed to die with "human dignity" on the set execution date.4 An initial stay of execution was overturned by the United States Supreme Court hours before expiration of the court order calling for his execution.5 The execution resurrected the debate on the purposes of capital pun- ishment and heightened public awareness of the many questions sur- rounding the death penalty. This comment briefly traces the evolution of the death penalty as we know it today, and examines constitutional chal- lenges to Virginia's capital punishment statutes in light of recent deci- sions in state and federal courts. The issue of waiver of right to counsel and further appeal is examined as well as the practice, on the opposite extreme, of plea bargaining in capital cases and whether this practice pro- motes voluntary decision or whether it is a product of duress. II. CONSTITUTIONALITY OF THE DEATH PENALTY A. HistoricalBackground The modern history of the death penalty began with the landmark de- cision of Furman v. Georgia in 1972.6 The Supreme Court held that the death penalty as applied was violative of the eighth amendment provi- sion, incorporated to the states through the fourteenth amendment, against cruel and unusual punishment.7 Although no opinion commanded 1. The four others were: Steven T. Judy in Indiana, March,1981; Jesse Walter Bishop in Nevada, October, 1979; John Spenkelink in Florida, May, 1979; Gary Mark Gilmore in Utah, January, 1977. See Richmond Times-Dispatch, Aug. 11, 1982, at A-2, col. 4. 2. Gregg v. Georgia, 428 U.S. 153, 169 (1976) (plurality opinion). 3. Prior to Coppola, the last person executed in Virginia was Carroll L. Garland, a Lynch- burg man accused and convicted of first-degree murder, on March 2, 1962. See 66 VA. L. REv. 167, 167 n.1 (1980). 4. Interview by United States District Judge D. Dortch Warriner with Frank J. Coppola, reprinted in Richmond Times-Dispatch, Aug. 11, 1982, at A-2, col. 1-6. 5. Richmond Times-Dispatch, Aug. 11, 1982 at A-I, col. 5. 6. 408 U.S. 238 (1972) (5-4 decision). 7. Id. at 240. 603 604 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 17:603 a majority or even a plurality of the Court,8 the effect of Furman was virtually to overturn every death penalty statute then in existence." Shortly after Furman, the states began to rewrite their death penalty statutes to comply with the decision. The Supreme Court in Gregg v. Georgia,'0 and its companion cases," reestablished the death penalty as an acceptable form of punishment 2 and established certain constitutional guidelines for states to follow. The Court held the use of a dual trial, one for conviction and the other for sentencing, known as a bifurcated pro- ceeding, relieves the threat of an arbitrary and capricious imposition of the death penalty.13 The sentencing authority is to be apprised of rele- vant information and provided standards to arrive at a decision in the 8. Each Justice wrote his own opinion in Furman. The four dissenters (Burger, C.J.; Blackmun, J.; Powell, J.; & Rehnquist, J.) agreed that the death penalty is constitutional, and the Court should leave to the state legislators the issue of sentencing procedures to be followed by judges and juries. Id. at 375-470. Of the concurring opinions, that of Justice Douglas concluding that the death penalty is unconstitutional because of its overly discretionary application in an arbitrary, discrimina- tory manner, is most often cited as the holding of the case. Id. at 249, 256-57 (Douglas, J., concurring). Two justices held that any death penalty statute is unconstitutional: "States may no longer inflict [the death penalty] as a punishment for crimes." Id. at 305 (Brennan, J., concurring); "In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute." Id. at 371 (Marshall, J., concurring). Justices White and Stewart fell short of this extreme, but concluded there were several arguments in its favor. Id. at 310-14 (White, J., concurring); Id. at 306-10 (Stewart, J., concurring). For an extensive analysis of the Furman opinions in light of recent law concerning the death penalty, see Note, Administering the Death Penalty, 39 WASH. & LEE L. REv. 101, 106 (1982). Cf. Note, The Death Penalty in Georgia:An Aggravating Circumstance, 30 AM. U.L. R.v.835, 840 (1981) (discussing the lack of agreement on what constitutes cruel and unusual punishment) [hereinafter cited as Aggravating Circumstance]. 9. 408 U.S. at 411 (Blackmun, J., dissenting). Justice Blackmun stated that the state stat- utes and those provisions of the federal statutory structure permitting the death penalty have been "discarded without a passing reference to the reasons, or the circumstances, that prompted their enactment. ." Id. at 412 (Blackmun, J., dissenting). 10. 428 U.S. 153 (1976) (plurality opinion). 11. In two companion cases, similar results were reached concerning statutes comparable to the Georgia statute questioned in Gregg. See Proffitt v. Florida, 428 U.S. 242, 259-60 (1976) (plurality opinion) (Florida death penalty statute held constitutional since system assures death will not be "wantonly" or "freakishly" imposed by allowing for evidentiary hearings into whether death should be imposed, and if such results in the sentence of death, a required writing to indicate the statutory reasons for the decision); Jurek v. Texas, 428 U.S. 262, 276 (1976) (plurality opinion) (Texas death penalty statute held constitutional since it narrows the definition of capital offenses, allows for a separate sentencing hearing, and states that there must be at least one statutory aggravating circumstance before death as punishment could even be considered). 12. "[Tjhe death penalty is not a form of punishment that may never be imposed regard- less of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it." Gregg, 428 U.S. at 187. 13. Id. at 195. See GA. CODE ANN. § 27-2503 (1978). 1983] DEATH PENALTY sentencing process.' 4 The Georgia statute examined in Gregg also re- quired that an aggravating circumstance be present before imposition of the death penalty could be considered. 15 The Court viewed this provision as another safeguard against discretionary imposition of the death pen- alty.'6 The Georgia death penalty statutes thereby were upheld as consti- tutionally sound since the statutory scheme avoided arbitrary imposition and broad discretion in application. 7 In two companion cases,' 8 the Supreme Court held, however, that state attempts to limit discretion in sentencing through a mandatory death sentence for certain homicides violated the eighth and fourteenth amend- ments of the Constitution.'9 Such statutory schemes failed to take into account any mitigating factors, such as the defendant's character, his past record if any, or his state of mind.'0 States with similar statutes, Virginia among them, were left to reformulate their capital punishment legislation in light of these decisions. Many states adopted statutes similar to those upheld in Gregg and its companion cases.2 ' The Supreme Court next examined the scope of the "mitigating fac- tors" to be considered in sentencing. The Court in Lockett v. Ohio22 held that an Ohio statute which enumerated the mitigating factors to be con- sidered, failed to "permit the type of individualized consideration .. required by the Eighth and Fourteenth Amendments in capital cases."'23 14. Gregg, 428 U.S. at 195. 15. Id. at 197. The Georgia statute listed ten aggravating circumstances for which a pen- alty of death could be imposed. See GA. CODE ANN. § 27-2534.1(b) (1978). In addition to the bifurcated trial and aggravating circumstances, the Georgia statute also provided automatic review by the Georgia Supreme Court of all death penalty sentences in the state. GA. CODE ANN. § 27-2537 (1978). For a detailed analysis of the Gregg decision, see Aggravating Cir- cumstance, supra note 8, at 843-47. 16. 428 U.S. at 197-98. 17. The defendants in Gregg, Proffitt, and Jurek argued that arbitrariness stillpervades in the statutes since the language of aggravating circumstances "is so broad that capital punishment could be imposed in any murder case." Gregg, 428 U.S. at 201. The plurality held there is no reason to believe a court will adopt such an "open ended construction." Id. at 201. For a summary of the constitutional challenges of this view, see infra note 24 and accompanying text. 18. Roberts v. Louisiana, 428 U.S.