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In 26 minutes and 31 seconds, the West Virginia Senate Judiciary Committee took the first step towards bringing back the death penalty.
The committee had little discussion, and no witnesses were called, despite a flock of Episcoplian ministers in the audience prepared to plead their case against it.
“It’s a matter of life and death,” said Rev. David Johnston of Trinity Episcopal Church in Huntington following the meeting. “To give it so short a period of time, is just wildly demeaning to human life.”
The legislation advanced by the committee last week would bring back the death penalty in the limited circumstance of when a law enforcement officer or a first responder is killed in the line of duty.
Since West Virginia outlawed the death penalty in 1965, it would require the state to build an execution chamber and a death row.
In the very same committee room, a three-judge panel conducted a hearing in 2023 to assess how much to pay Jason Lively, a McDowell County man who spent 14 years in prison for a murder he didn’t commit.
“He is reliving the hell he went through every day,” said Adam Dec, one of his attorneys.
Last year, the lawmakers approved the $1.56 million payout to Jason Lively, whose prison term left him mentally broken.
And thirty years ago, more than 100 people had their cases reviewed after a West Virginia State Police laboratory scientist was found to have exaggerated — or in some cases completely made up — evidence in violent felony cases.
Fred Zain, who was later found to have fabricated his credentials, testified on blood type and semen evidence in more than 100 rape or murder cases during the 1980s.
Charleston attorney Lonnie Simmons helped bring Zain’s actions to light during the appeal of a Cabell County man who was exonerated by DNA evidence after being convicted for a string of rapes in 1987.
He said most cases don’t have the benefit of that kind of hard evidence like blood or semen. Many cases are circumstantial, meaning they are built on eye witness testimony.
“It’s not like crimes are committed on videotape,” Simmons said.
And while the death penalty bill states a case cannot be based entirely on eye witness testimony, it does allow for “uncoerced confessions.”
An uncoerced confession can come after hours of questioning without video or audio tape recording, said retired Kentucky public defender Brian Hewlett, who tried at least five death penalty cases in his 27-year career.
“One person’s uncoerced confession is another person’s stage-managed statement by law enforcement against a non-intelligent or non-sophisticated defendant,” Hewlett said.
Between 1989 and 2020, of the 375 exonerations through DNA, 29% of them involved a false confession, according to the Innocence Project. This rate goes up to nearly 50% for suspects less than 21 years of age.
Senate Judiciary Committee Chairman, Sen. Mike Stuart, R-Kanawha, said the bill was needed in order to show law enforcement that they are supported in the field.
Prior to holding the vote, Stuart attacked an attached financial analysis by the Department of Corrections and Rehabilitation that showed it would cost about $25 million to build the infrastructure for the death penalty.
The majority of that cost would go towards constructing a 75-bed death row, as well as an execution chamber.
“It sounds like the Social Security Administration must have provided that fiscal estimate,” Stuart said. “That’s crazy, it’s $25 million for 75 beds.”
The bill was sent to the Senate Finance Committee. Sen. Jason Barrett, R-Berkeley, the committee chair, said he’s aware of the large cost, but he hasn’t had an opportunity to review it yet.
There are currently 25 people sitting on Kentucky’s death row, with the last execution being in 2008. According to a 2020 report by the Kentucky Bar Association, the death penalty cost taxpayers $10 million each year.
“I don’t know that their judges, their lawyers, their prosecutors, are ready for what’s coming if it’s back on the table,” said Hewlett, the former Kentucky public defender.
Judges aren’t thrilled about ordering a person to die. Prosecutors have to consider what families of victims want. Potential jurors must be scrutinized heavily by lawyers. Victims are often reminded of their trauma whenever a case comes up for appeal. The family of the defendant is shamed, especially in a small town.
“A death penalty case is tough on everyone,” he said.
Reach reporter Henry Culvyhouse at henry@mountainstatespotlight.org.
