The Death Penalty in Virginia

In Virginia, the death penalty is an available sentence for only one crime: First Degree Murder.  First degree murder means there was premeditation in killing the victim.  However, for a court or jury to impose a death penalty sentence, there must be at least one aggravating factor.

The following are considered aggravating factors in Virginia:
"1. The willful, deliberate, and premeditated killing of any person in the commission of abduction, as defined in § 18.2-48, when such abduction was committed with the intent to extort money or a pecuniary benefit or with the intent to defile the victim of such abduction;
2. The willful, deliberate, and premeditated killing of any person by another for hire;
3. The willful, deliberate, and premeditated killing of any person by a prisoner confined in a state or local correctional facility as defined in § 53.1-1, or while in the custody of an employee thereof;
4. The willful, deliberate, and premeditated killing of any person in the commission of robbery or attempted robbery;
5. The willful, deliberate, and premeditated killing of any person in the commission of, or subsequent to, rape or attempted rape, forcible sodomy or attempted forcible sodomy or object sexual penetration;
6. The willful, deliberate, and premeditated killing of a law-enforcement officer as defined in § 9.1-101, a fire marshal appointed pursuant to § 27-30 or a deputy or an assistant fire marshal appointed pursuant to § 27-36, when such fire marshal or deputy or assistant fire marshal has police powers as set forth in §§ 27-34.2 and 27-34.2:1, an auxiliary police officer appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733, an auxiliary deputy sheriff appointed pursuant to § 15.2-1603, or any law-enforcement officer of another state or the United States having the power to arrest for a felony under the laws of such state or the United States, when such killing is for the purpose of interfering with the performance of his official duties;
7. The willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction;
8. The willful, deliberate, and premeditated killing of more than one person within a three-year period;
9. The willful, deliberate, and premeditated killing of any person in the commission of or attempted commission of a violation of § 18.2-248, involving a Schedule I or II controlled substance, when such killing is for the purpose of furthering the commission or attempted commission of such violation;
10. The willful, deliberate, and premeditated killing of any person by another pursuant to the direction or order of one who is engaged in a continuing criminal enterprise as defined in subsection I of § 18.2-248;
11. The willful, deliberate, and premeditated killing of a pregnant woman by one who knows that the woman is pregnant and has the intent to cause the involuntary termination of the woman's pregnancy without a live birth;
12. The willful, deliberate, and premeditated killing of a person under the age of fourteen by a person age twenty-one or older;
13. The willful, deliberate, and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism as defined in § 18.2-46.4;
14. The willful, deliberate, and premeditated killing of a justice of the Supreme Court, a judge of the Court of Appeals, a judge of a circuit court or district court, a retired judge sitting by designation or under temporary recall, or a substitute judge appointed under § 16.1-69.9:1 when the killing is for the purpose of interfering with his official duties as a judge; and
15. The willful, deliberate, and premeditated killing of any witness in a criminal case after a subpoena has been issued for such witness by the court, the clerk, or an attorney, when the killing is for the purpose of interfering with the person's duties in such case."
Virginia Code Section 18.2-31

These are the only instances in which a court may impose a death penalty sentence.  In common with all of these factors is the "willful, deliberate and premeditated killing" or another, meaning all of these factors result in a conviction of first degree murder.

Virginia certainly does not have the most lenient death penalty law but they are also not the harshest.  In fact, many states have abolished the death penalty all together.  On the other hand, in some states, there are additional crimes for which someone can be sentenced to death. 

If you have questions regarding the death penalty, you should seek the advice of an attorney.

Theories of Sentencing

A crime has been committed.  The defendant has been charged, tried and convicted.  The next phase: sentencing.  How should this person be punished?  What do we hope to obtain from their sentence?  Why do some people, who are convicted of similar crimes, have such drastically different sentences?

Sentencing, in Virginia and similarly throughout the country, is based on four main theories.  Deterrence, Incapacitation, Punishment and Rehabilitation are all typically considered when determining what a person's sentence should be.

Deterrence - This is meant to deter future crimes by not only this individual person, but also others who may be enticed to commit the same or similar crime in the future.  We, as a society, at least theoretically, want to make sure the sentence deters that individual and other individuals from committing that type of crime in the future.  We want to reduce crime in general in our society.

Incapacitation - This is meant to deter future crimes as well.  We want, again at least theoretically, to remove this individual from society to ensure that this individual does commit crimes in the future.  This begs the question, in my opinion, when is it ever time to allow this individual to return to society?  How do we know we have incapacitated him for long enough?  Nevertheless, this is to be considered when crafting a sentence for a criminal defendant.

Punishment - This is simply meant to punish the individual for the crime committed.  What degree of crime was it? Did they kill someone?  Did they injure someone?  Did they steal $5 or $50,000?  Should this make a difference as to sentence?  Society has determined over time certain crimes they think are more heinous than others and therefore, warrant a harsher sentence.  In large part, although not exclusively, this is played out through the punishment theory.

Rehabilitation - This is meant to help an individual become a "better person" and reduce the likelihood that they will commit crimes in the future.  Some say that not all criminal defendants can be rehabilitated.  Some criminal defendants, however, such as criminal defendants who are addicted to drugs, can be rehabilitated through services such as therapy.

All four of those theories are the basis for crafting sentences in Virginia.  Some apply to a certain criminal defendant than others but all should be considered and addressed by your attorney in a sentencing hearing. 

If you have been charged with a crime, seek the advice of counsel as soon as possible to ensure your rights are protected throughout the entire process. 

When can you get an expungement?

I have come across many people who are very misguided on the use of an expungement.  An expungement is a legal tool to have any record of your arrest, trial, etc. removed from all files.  The result is that it basically looks like it never happened.

You were found not guilty, so why would you want an expungement?

Although being found not guilty is a great result, unfortunately, in today's society that is not enough.  Many Americans have forgotten the concept of "innocent until proven guilty" which means when they see you were arrested with a charge, even though you were found not guilty, people assume you did something wrong. 

How do you get an expungement?

There is a process to petition the court for the expungement of your records relating to a charge which was ultimately dismissed.  This process includes serving the Commonwealth Attorney (or other relevant party) and obtaining your fingerprints and records from the Virginia State Police.  The Commonwealth Attorney then has the opportunity to object to having your file expunged.

When is an expungement available?

The standard for an expungement is higher than just being found not guilty.  Expungements are typically reserved for those who are "innocent".  This is a higher standard than being found not guilty.  Obviously to obtain an expungement, you should never plead guilty to the crime as you are admitting you are not innocent.  Typically, if there is a finding of guilt or facts sufficient to prove guilt, you will be unable to obtain an expungement. 

Expungements are controlled by a complicated set of laws and if you are interested in obtaining an expungement, you should speak with an attorney first. 

Why you should consult with an attorney on even a minor charge - Understanding the charge

I have found that many people do not fully understand the benefits of simply consulting with an attorney.  This post is directed at people who have been charged with misdemeanors.  When you are charged with a misdemeanor, a few things could happen: first, you could be facing jail time and found to be indigent, in which case the court will likely appoint you an attorney; second, you could be facing jail time but the court has not found you indigent; third, you could be facing jail time but the Commonwealth Attorney waives any possibility of jail time; and finally, the charge may be so minor that there is no possibility of jail time.  The latter three scenarios means the court does not appoint you a lawyer and you have to decide whether or not you will proceed pro se (without an attorney) or retain an attorney on your own.

Consulting with an attorney does not mean you have to retain that lawyer to represent you.  It simply can mean you meet with an attorney to decide whether or not you are capable of representing yourself or whether you should be represented by an attorney.  The next few blog posts will discuss why it is important that you consult with an attorney regarding these charges.

DUI, DUI 2nd, Refusal, Trespass, Assault, Contributing to the delinquency of a minor, reckless driving, driving on a suspended license.  These are just a few of the misdemeanor charges in Virginia.  While they many appear straight forward based on the name of the charge, there are a ton of intricacies within these charges.  Attorneys are trained to know these intricacies and/or be able to research and understand these intricacies to ensure that the legal system is working properly.  It is important to understand each element of the charge, as well as each possible defense, to determine whether or not you are guilty of the charge.  The first step to defending your rights after being charged with a misdemeanor is to fully understand the charge.

Consulting with an attorney will not only help YOU understand the charge, but, if you decide to retain that attorney, will provide you with someone who fully understands the charge and all of its intricacies.