Virginia

The information on this page provides a brief overview of capital clemency in Virginia and is not intended to serve as the basis for a capital clemency petition or campaign. For additional information and sources, please see the full Virginia Clemency Memo (December 2019) prepared by the ABA Capital Clemency Resource Initiative. 

Virginia Capital Clemency Memo

UPDATE: Virginia Abolishes the Death Penalty; Commutes Two Remaining Death Sentences

On March 24th, 2021 Virginia Governor Ralph Northam signed HB2263 into law, abolishing the death penalty in the state. The passage of this legislation makes Virginia the 23rd state, and the first in the South, to eliminate capital punishment as a possible sentence. The harshest punishment for Virginia’s 15 capital offenses will now be life in prison, and will applied to the state’s two remaining prisoners on death row. Virginia has carried out the most executions of any other state since its formation at 1390 executions, and is second only to Texas in modern-era executions, despite not having sentenced anyone to death since 2011. Noting the racial disparities in the application of the death penalty in a press conference, Gov. Northam said “It is not fair. It is applied differently based on who you are. And the system has gotten it wrong…Justice and punishment are not the same thing.”

Note: The below information and attached memorandum discusses the capital clemency process in Virginia prior to the March 2021 abolition of death as a possible sentence. 

The Power Defined

Article V, section 12 of the Virginia Constitution vests the governor with the exclusive power to “grant reprieves and pardons after conviction except when the prosecution has been carried on by the House of Delegates . . . and to commute capital punishment.”

The Decision Maker(s)

The clemency power is granted exclusively to the governor. The governor may, but is not required to, request that the Virginia Parole Board (“Board”) investigate and report to the governor on any case in which clemency has been requested. The Board may investigate and report its recommendations to the governor in the absence of an express request from the governor to do so, if the Board believes action is proper or in the best interest of the Commonwealth.

The Board consists of no more than five members, each appointed by the governor and confirmed by the General Assembly. At least one member of the Board shall be a representative of a crime victims’ organization or a victim of crime (as that term is defined in the Virginia Code)

How Petitions are Brought

Virginia does not require an official clemency petition form or format to be used by petitioners, and there are no guidelines on the governor’s website regarding what sort of information a capital clemency petition should include.

Although there are no formal rules governing the content of the clemency petition, the petitioner should expect to specify the circumstances which support the request for mercy. Petitions may include letters in support of clemency from various sources, including other prisoners incarcerated with the petitioner, correctional officers, pen pals, family members, community members, church groups, and others. Attorneys for petitioners are encouraged to contact the governor’s office early in the clemency application preparation process for additional information.

Hearing Practice

The governor may request that the Board hold a hearing on an application for executive clemency. However, this process has not yet been utilized in a Virginia capital clemency case. Instead, legal representatives of petitioners have met with the governor’s legal counsel or chief of staff regarding pending clemency petitions.

Responding to a Petition

If the governor issues a reprieve, grants a pardon, or commutes a sentence, she must submit her reasons for doing so to the General Assembly. The governor’s reports to the General Assembly are available through Virginia’s Legislative Information System. In recent cases, the governor has publicly announced reasons for granting or denying clemency in capital cases in press releases or press conferences.

Current Clemency Decision Maker(s)

The Governor

Governor Ralph S. Northam took office in January 2018. He grew up on a farm on the Eastern Shore of Virginia, attended the Virginia Military Institute, and obtained his medical degree from Eastern Virginia Medical School. Governor Northam has served as the chief neurological resident at Johns Hopkins Hospital, taught medicine and ethics at Eastern Virginia Medical School, and started his own pediatric practice. Governor Northam served in the Army for eight years of active duty and became a major. His political aspirations began in 2007 when he was elected to the state senate, where he served two terms. In 2014, he transitioned to the executive branch when elected as the Lieutenant Governor of Virginia.

Governor Northam’s views on the death penalty reflect some ambivalence. As a state senator in 2008, he voted against HB 933, a bill that proposed expanding capital eligibility to “accomplices” and “accessories before the fact” in capital murders involving 1) an act of terrorism; 2) a continuing criminal enterprise; or 3) a murder for hire. Accomplices could also be eligible if they had the same criminal intent as the “triggerman” and accessories could be eligible if they ordered the killing. However, when the same expansions for eligibility were proposed again in 2009 as SB 961, Northam voted in favor of them.

During a gubernatorial debate hosted by the Virginia Bar Association, then-candidate Northam discussed his personal opposition to the death penalty. He stated that he supports life in prison without parole, but he would rather give people the resources they need before they commit heinous acts. Northam re-asserted his opposition to the death penalty later in the debate but added that he supported Governor McAuliffe’s decision not to grant clemency to William Morva, a man with severe mental illness.

Significant Past Capital Clemency Decisions

Grants

Ten death row inmates have received grants of capital clemency in Virginia since 1976.

Name	Year	Governor	Reason
Joseph Giarratano	1991	Douglas Wilder	Possible Innocence
Herbert Bassette	1992	Douglas Wilder	Possible Innocence
Earl Washington	1994	Douglas Wilder	Possible Innocence
Joseph Payne	1996	George Allen	Possible Innocence
William Saunders	1997	George Allen	Possible Innocence
Calvin Swann	1999	Jim Gilmore	Serious Mental Illness
Robin Lovitt	2005	Mark Warner	Public Trust in the Justice System
Percy Walton	2008	Timothy Kaine	Serious Mental Illness
Ivan Teleguz	2017	Terry McAuliffe	Unfair Sentencing
William Joseph Burns	2017	Terry McAuliffe	Serious Mental Illness

Source: Clemency, Death Penalty Information Center, http://www.deathpenaltyinfo.org/clemency (last visited Dec. 20, 2019).

Joe Giarratano woke up in the house he had been staying at for a month to find a 15-year-old girl and her mother deceased. He initially ran away, assuming he had committed the crime, but with no recollection of it because he had taken drugs the night before while partying at the house. Giarratano was convicted based on his confession and circumstantial evidence; there was no physical evidence tying him to the crime. Giarratano had confessed on four occasions, but each time, his story changed, and his accounts were not consistent with the evidence at the crime scene. Finally, during the fifth confession, police coached him through what happened, and then Giarratano “gave” the confession that would be used to convict him.

Based on doubts about his guilt, in 1991 Governor L. Douglas Wilder commuted Giarratano’s sentence to life in prison with the possibility of parole. He said his decision was based on the evidence presented to him, separate from the pleas from the public to release Giarratano; the campaign promoting Giarratano’s innocence had spread worldwide, and advocates believed all the available evidence weighed heavily in his favor. For example, one of the victims had been stabbed by someone right-handed, but Giarratano is left-handed. Additionally, there was no DNA evidence linking him to the crime. The police had found pubic hair, fingerprints, and footprints at the scene, but they did not match Giarratano or either of the victims.

While in prison, Giarratano became known as a jailhouse lawyer and assisted in helping to free Earl Washington, the only person to be fully exonerated from Virginia’s death row. He was also the named party in Murray v. Giarratano, a 5-4 decision by the U.S. Supreme Court holding that prisoners are not constitutionally entitled to counsel during post-conviction proceedings. Giarratano was released on parole on December 20, 2017. He is currently working for the University of Virginia’s Innocence Project.  

Ivan Teleguz was sentenced to death after being convicted of murder-for-hire. Governor Terry McAuliffe commuted Teleguz’s sentence to life without parole on April 20, 2017, due to concerns about false testimony at his trial. His codefendants testified that he had hired them to murder the mother of his child, Stephanie Sipes. The codefendants claimed they carried out the murder at Teleguz’s request, because they were afraid that Teleguz had ties to the Russian mafia. However, no other evidence was offered to support the allegation that Teleguz was involved with the mafia. Additional testimony at trial insinuated Teleguz was involved in a separate homicide that occurred outside of a rec center in Ephrata, Pennsylvania; it later emerged that that homicide never actually happened. During closing arguments, the prosecutor suggested that because of his mafia ties, Teleguz could simply pick up the phone in prison and order more people killed. Governor McAuliffe was mostly concerned about the influence these statements had on the jury. For example, a juror asked the bailiff if Teleguz would have access to her personal information. The judge sent back a note to the entire jury stating Teleguz’s attorney had all of the jurors’ information and failed to reassure the jurors that Teleguz could not gain access to it. Soon after this question was answered, the jury returned a death sentence. Governor McAuliffe stated, “American values demand that every person, no matter their crime, be given due process of law. In this case, we now know that the jury acted on false information and it was driven by passions and fears raised, not from actual evidence introduced at trial, but from inference. To allow a sentence to stand based on false information and speculation is a violation of the very principles of justice our system holds so dear.”

William Burns was sentenced to death for killing and raping his mother-in-law. He challenged his sentence on the grounds that he had an intellectual disability and therefore could not be executed. However, the psychologist appointed by the circuit court concluded that Burns had mental health issues that prevented an accurate intellectual disability evaluation. Furthermore, he declared Burns incompetent to assist his defense attorney in the proceedings because of his psychosis, which a court-appointed neuropsychiatrist described as “impairment of autobiographical memory, derailment of language and thought, and significant social deterioration.” The Virginia Supreme Court halted the appeals, declaring the courts could not decide Burns’ intellectual disability claim until his mental capacity was restored, because a defendant must be competent to assist with his defense. In order to execute Burns, he would have to be returned to competency during a new sentencing phase, the appeals process, and for execution. However, experts were in agreement that it is highly unlikely that his competency could be restored.  Governor McAuliffe intervened and commuted Burns’ sentence to life without parole, citing the legal difficulties created by Burns’ incompetence, and explained that continuing the appeals process in Burns’ case would “tax the resources of the Commonwealth” when those funds could be devoted to other cases.

Denials (where newsworthy or controversial)

William Morva

On July 6, 2017, Governor Terry McAuliffe denied William Morva’s clemency despite widespread support for commutation because of his serious mental illness. In 2006, Morva was in custody on charges of attempted armed robbery when he demanded treatment for some minor injuries. After being transported to the hospital, he knocked a sheriff’s deputy unconscious, took his gun, and fatally shot a security guard to escape. The following day, before he was apprehended, Morva killed a sheriff’s corporal. Morva was sentenced to death in 2008.

Morva’s execution received widespread attention after the jury was told by experts that he had a personality disorder which manifested as odd beliefs, instead of a diagnosed delusional disorder which left him unable to separate reality from delusion. Once Morva exhausted all of his appeals, many hoped McAuliffe would grant him clemency given the role that mental illness played in the crime. As coverage of the case grew, various people and organizations petitioned McAuliffe to stop the execution, including the European Union, Amnesty International, the ACLU of Virginia (along with over 31,000 signatories), several Virginia state legislators, Virginia representatives in Congress, and one of the victim’s daughters.

Hours before Morva was scheduled to die, however, McAuliffe quietly released a statement declining to intervene, saying “After extensive review and deliberation, I do not find sufficient cause in Mr. Morva’s petition or case records to justify overturning the will of the jury that convicted and sentenced him.”

Virginia Resources

Click here to view Virginia resources for download, including clemency petitions and other relevant practice materials. Please note that not all of the content will be visible to users who are not currently logged in or do not otherwise have practitioner-access to the website.

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Page last updated on April 1, 2021

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