The Death Penalty in West Virginia

2015 will mark the 50 year anniversary of the passage of House Bill 517 which abolished the death penalty in West Virginia. The Bill which was sponsored by Delegates from Kanawha and Fayette County was signed into law by Governor Hulett C. Smith in 1965. Seven years before the US Supreme court ruling on Furman v. Georgia which resulted in a de facto moratorium nationally until 1976. West Virginia was the last state to abolish the death penalty prior to Furman.

West Virginia has never been the most advanced state when it came to carrying out the death penalty. Public hangings, orchestrated by county governments, were the standard in the state till 1899. Following some very negative press surrounding a public hanging in 1897, which drew over five thousand onlookers, the state assumed the responsibility of carrying out the death penalty. The state continue the use of hanging, behind the closed walls of Moundsville State Penitentiary until 1949. When an inmate, who was an electrician, was tasked to construct an electric chair.

In 1951 Harry L. Burdette and Fred Painter were the first two inmates to experience death by electrocution. One witness at that time, then Del. Robert C. Byrd, described the execution as, “an event so grim as to leave an indelible impression upon my memory.” The electric chair was last used to execute Elmer Brunner in April of 1959. Six years before the abolition of the practice.

Since then there have been several motions to repeal the 1965 law and reinstate the death penalty none of which have been successful. After the recent shift in the state legislature following the 2014 election cycle the momentum to repeal the law and reinstate the death penalty has increased dramatically. It is very likely that 2015 will be the first year the death penalty has the possibility of passing both houses of the legislature. Should the Governor choose to veto the bill the party currently controlling both houses has the simple majority required to override the veto.

In researching for this brief history I discovered that while 2015 marks the 50th anniversary of the repeal of the death penalty in West Virginia it is also the first year that none of HB 517’s sponsors, legislative leaders who brought it to vote, or the governor who signed it into law is alive to defend the it. The last remaining sponsor, Robert Holliday, having passed away in March of 2014.

The death penalty is applied in an unfair and unjust manner against people, and is largely dependent on how much money they have, the skill of their attorneys, race of the victim and where the crime took place. People of color are far more likely to be executed than white people, especially if the victim is white.

This is historically true in West Virginia. During the 60 years West Virginia carried out the death penalty the state executed a disproportionately high percentage of African-Americans, in fact 42.5 percent of all those executed were African-American. Census figures for 1900 to 1960 show that the state’s total black population averaged about 5.7 percent.

The death penalty is also a waste of taxpayer funds and has no public safety benefit. The vast majority of law enforcement professionals agree that capital punishment does not deter violent crime; a survey of police chiefs nationwide found they rank the death penalty lowest among ways to reduce violent crime. They ranked increasing the number of police officers, reducing drug abuse, and creating a better economy with more jobs higher than the death penalty as the best ways to reduce violence. The FBI has found the states with the death penalty have the highest murder rates. In 1965, after the repeal of the death penalty, West Virginia enjoyed very lower crime rates for several decades.

When you factor in all the court costs to the state a single case could result in millions of dollars in legal and attorney's fees. Throw in the years someone would have to appeal, the cost of incarceration, the scarcity and high cost of lethal injection drugs. A single prisoner convicted of the death penalty could cost the state millions and millions of dollars.

Then there is the fact that innocent people are too often sentenced to death. Since 1973, over 140 people have been released from death rows in 26 states because of innocence. Nationally, at least one person is exonerated for every 10 that are executed. Here in West Virginia our justice system reviewed 143 cases and exonerated five prisoner after a state serologist, Fred Zain, had been found falsifying forensic reports. In 2011, a decade after wrongly condemning 13 people to death, the state of Illinois commuted the sentences of 15 remaining death row inmates to life and abolished the death penalty after recognizing the states long problematic history with capital punishment. Isn't it better to let a guilty person go free than to execute an innocent person?

The death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. It is uncivilized in theory and unfair and inequitable in practice. Don't let 2015 be the year we take a step back on our history.

Consider supporting the ACLU of West Virginia @ www.acluwv.org

Feb. 22nd, 2015 Note: The original version of this post mentioned that 143 individuals were exonerated by the falsified work of Fred Zain. While researching this post I came across this misattributed statement from a number of sources. I was recently contacted by an attorney who was actively involved in the review and I have corrected the information.

The thoughts and opinions expressed here are those of the individual contributor alone and do not necessarily reflect the views of their employers, the ACLU and ACLU of WV, its members, funding agencies, or staff.