Questioning Virginia “Future Dangerousness” Factor in Death Penalty Sentencing
In February 2011, Mark Lawlor, a leasing consultant in Virginia, was convicted of rape, intent to defile, and premeditated murder after attacking a woman in his building while intoxicated by drugs and alcohol. The courts initially decided to give Lawlor the death penalty as he was deemed a “continuous threat to society” if kept alive, and his crime was deemed “outrageously vile.”
However, after a long appeal process, Lawlor’s sentence was overturned, in part due to how the law defines a “continuous threat to society” if kept alive. Throughout the appeal process, it was unclear how “society” is defined in this context. Lawlor was looking at a lifetime in prison if he was able to appeal his death sentence, so the jury had to consider whether he was a threat to an incarcerated society, or society as a whole regardless of his incarcerated state.
Initially, the expert witness who measured Lawlor’s “future dangerousness” determined that he would not be a threat while in prison. However, this expert’s testimony was not considered mitigating evidence and so was excluded during the sentencing phase of the case. The court’s decision to exclude this expert’s testimony was based on the expert’s ability to only speak on Lawlor’s level of dangerousness in a prison setting. Furthermore, how he collected his information to make his conclusion seemed only applicable in the general sense to all similarly-situated prisoners. The trial court’s exclusion of this evidence ultimately led to Lawlor’s death penalty appeal.
Decisions such as these are studied by many lawyers and policymakers, especially when it comes to significant topics such as the death penalty. In 2014, now-Price Benowitz attorney Andrew Lindsey argued in his law school thesis that Virginia’s capital punishments are unconstitutional based on the same reasoning behind why Lawlor’s death sentence was overturned on appeal. Specifically, it violates a capital defendant’s constitutional right to rebut the case against him when not all relevant evidence is considered at trial because of the ambiguous definition surrounding the term “society.”
Lindsey wrote that a potential solution to doubtful death sentences might be to appeal to Virginia’s exclusionary policy on evidence that pertains to the “future dangerousness” aggravator. The United States Court of Appeals for the 4th Circuit agreed with Lindsey four years later, holding that the Virginia courts committed an “unreasonable application” of both “clearly established federal law” and Virginia’s own “state law” by rejecting Lawlor’s expert witness testimony. In other words, evidence pertaining to a defendant’s prison conditions should be used as admissible evidence in cases such as the Lawlor v. Zook case when determining a person’s future threat to society if given a non-death-penalty sentence.
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