Mark Herring, Jay Jones, and the Death Penalty
It's complicated.
Delegate Jay Jones (D-Norfolk) is calling on Virginia Attorney General Mark Herring (D) to no longer defend the commonwealth in the appeals of two individuals on death row.
Jones and Herring are both seeking the Democratic nomination for attorney general, a job Herring has held since 2014.
Both formally announced their opposition to the death penalty this week.
“I think [Herring] has got to put his money where his mouth is,” Jones said in an interview with Virginia Scope.
Jones announced on Tuesday that he will be the chief co-patron on a bill during the current legislative session that would abolish the death penalty in Virginia. “I believe deeply in my soul that the death penalty is abhorrent and must be abolished immediately,” he said in a press release.
On Wednesday, Herring announced he supports abolishing the death penalty. “It is time for Virginia to end the death penalty and I will support Governor Northam’s efforts to make it happen this year. Its abolition must be part of our work to reform a flawed and imperfect criminal justice system.”
There are only two individuals currently on death row in Virginia: Anthony Juniper and Thomas Porter. Both have been working their way through the appeals process for years. Now, Jones is urging Herring to step away from the cases.
If Herring heeds Jones’ call, it won’t be the first time he declined to defend Virginia in court. In 2014, almost immediately after taking office, Herring announced that he wouldn’t defend Virginia’s same-sex marriage ban. "As attorney general, I cannot and will not defend laws that violate Virginians' rights," Herring said at the time. "The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied."
While urging Herring to opt-out of defending the death penalty cases, Jones suggested that Herring’s recent announcement opposing the practice was politically convenient. “I am very skeptical that this is coming from a place where he all of a sudden had a change of heart,” said Jones. “He is playing politics to preserve himself instead of preserving people.”
In addition to defending death penalty appeals, Jones noted that Herring’s office defended Virginia in a case from 2019 in which several news organizations sued the commonwealth on First Amendment grounds. The news organizations objected to Virgiini’s use of curtains to hide the preparations before executions.
“If this were true, states could be compelled to broadcast executions for public viewing, a position that has been universally rejected by every court to have considered it,” Herring’s office argued at the time.
Herring’s team told Virginia Scope that he is supportive of commuting the sentences of Juniper and Porter. "Attorney General Herring believes it is time for the death penalty to end in Virginia and he is supportive of this year's legislative efforts to do so, which would also include commuting the sentences of the two current cases,” said Charlotte Gomer, press secretary for Herring.
Gallup polling over the years has shown a steady increase in opposition to the death penalty along with a decrease in support. Gomer noted that public opinion in Virginia has shifted towards abolishing the death penalty. “There is now a broad consensus on ending the death penalty in Virginia and Attorney General Herring's stance is in line with his ongoing criminal justice reform initiatives, including the newly announced Conviction Integrity Unit that will expand the OAG's efforts to better identify and overturn wrongful convictions, making Virginia an even more fair, equal, and just place."
Until this week, Jones hadn’t publicly supported abolishing the death penalty either. In an interview in late May of 2020 with Blue Virginia, he discussed executions in-depth without calling for abolishment. “There are folks who would say that it is not a deterrent, it does not show any statistical correlation to deterring folks from committing these heinous crimes,” he said. “But if we are subjected to doing it, you want to do it in the most transparent, open way possible and give everybody a chance to weigh in.”
Jones hinted at a desire to get rid of the death penalty last month after Brandon Bernard was executed in Indiana. “The execution of Brandon Bernard tonight is saddening, and we must reassess the efficacy of capital punishment,” he tweeted on the night Bernard was executed. “Several more Americans are scheduled to be put to death in the coming weeks and I hope we’ll take a hard look at our practices before it’s too late.”
When asked about these comments on Thursday, Jones said; “This has always been at the forefront for me and not just when the political headwinds blow in that direction.”