Human Factors, Discretion Cause Death Penalty Disparities


Sam McCroskey won a plea deal in Virginia last month: a life sentence instead of execution for bludgeoning four people to death — three while they slept, says the Richmond Times-Dispatch. Three days later, Teresa Lewis was executed by injection for a double murder-for-hire in which she did not pull the trigger. The different outcomes were the latest to confound Virginians who support or oppose the death penalty.

Experts say many factors, not all of them apparent, figure in death cases, including the sentiments of jurors in the 120 jurisdictions that elect prosecutors, the wishes of the victims’ families, the strength of evidence, and the abilities of the prosecutor and defense lawyers. From the initial decision by a prosecutor to seek the ultimate sanction to the 11th-hour call by a governor on whether to intervene, discretion plays a huge role. “As long as there’s a human factor in the decision-making, there’s going to be disparity,” said Craig Cooley, a criminal defense lawyer who has worked on 68 capital-murder cases. The way Warren Von Schuch, a special prosecutor in Chesterfield County, sees it, “you have to start with a prosecutor acting in good faith and from there, there are just a myriad of variables that affect the ultimate outcome.”

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