Monday, October 31, 2005

Why I'm not following the Kaine logic on the death penalty

In this post, my fellow Virginia lawyer at Blawg De Novo wrote:

"As a Catholic (and a lawyer), I can tell you Kaine’s logic is very easy to understand. The disconnect appears to be with those who have difficulty understanding the ability to separate the individual religious view from the oath of office, a concept apparently as novel today as it was when it was drafted into the Constitution."

I'm not following the logic, and so I wrote this comment:

"It appears to me that a governor’s oath of office does not require him to 'enforce' the death penalty. To the contrary, under the Virginia Constitution and by statute, the power without limitation to commute a death sentence in any (or every) case is vested solely in the Governor. Va. Code § 53.1-229. If there are substantive limits on the Governor’s discretion, I don’t know what they are, short of malfeasance or corruption that would justify removal from office."

In other words, the point is not that there is a conflict between Virginia law and Mr. Kaine's views on the death penalty, but rather the opposite: the law would empower Mr. Kaine as governor to do whatever he sees fit in dealing with death penalty cases. Certainly, every governor should be vigilant in the exercise of his power of executive clemency. One would expect, however, that a Governor with a categorical objection to the death penalty might be more expansive in his use of that power, in ways that many Virginians might find objectionable.

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