WV Senate committee advances bill to reinstate death penalty

CHARLESTON—The Senate Judiciary Committee recently advanced a bill that would reinstate the death penalty for first degree murder with a narrow list of aggravating circumstances. 

SB 1037, sponsored by Senator Kevan Bartlett, R-Kanawha, and co-sponsored by Senators Eric Tarr, R-Putnam, and Mark Maynard, R-Wayne, allows prosecutors to seek the death penalty for defendants convicted of intentional murder while committing or attempting to commit first degree sexual assault. 

To sentence someone to death, a jury must unanimously agree that there is an aggravating factor and no “mitigating circumstances.”  This term includes an extreme mental or emotional disturbance at the time of the murder, lack of capacity and acting under duress or substantial influence of another person. 

SB 1037 does not mandate any particular form of execution but specifies that it should be carried out according to “evidence-based scientific research.” It lists lethal injection and firing squad as acceptable options

Bartlett invited Jackson County Sheriff Ross Mellinger to testify in support of the bill. Mellinger used the example of a graphic sexual assault, resulting in the death of nine-month-old Emmaleigh Barringer in 2016. Mellinger argued that perpetrators in cases such as these cannot be rehabilitated and that the death penalty would be more appropriate. 

“There’s two facets of incarceration, or two goals or objectives for incarceration,” Mellinger said. “On those that are convicted, you look at public protection, and you’re looking at rehabilitation. And make no mistake about it, these types of people cannot and will not be rehabilitated.”

Bartlett argued that there are some crimes that are too extreme for life imprisonment and that those perpetrators “void their right to exist in our society.”

“These are rare cases, and when the state contemplates capital punishment, it ought to be the most extreme and rare cases,” Bartlett said. “So, I advocate for the bill. I advocate bringing capital punishment back to West Virginia to value life, because those who devalue life forfeit their right to coexist with the rest of us.”

As has been the case historically, the death penalty continues to disproportionately impact Black people, especially Black men. Forty-one percent of the country’s death row population are Black, despite Black people only making up thirteen percent of the population, per the National Association of Criminal Defense Lawyers. A study in Washington state found that Black defendants were four times more likely to be sentenced to death than non-Black defendants. A separate study in Louisiana found that the odds of a death sentence were ninety-seven percent higher when the victim was white,compared to when victims were Black.

Currently, 27 U.S. states still have the death penalty. West Virginia abolished its death penalty in 1965. While it does not explicitly call to reinstate the death penalty in states that have abolished it, the Heritage Foundation’s notorious Project 2025 advocates for the execution of current federal death row inmates and pursuing the death penalty in all applicable crimes.

Globally, the United States is one of only 54 countries that have retained the death penalty for ordinary crimes, with nearly three-quarters of countries having abolished it. In 2024, the U.S. was an outlier in the Americas, having been the only country to carry out an execution–and one of only 15 globally. 

Senator Joey Garcia, D-Marion, was the sole senator to speak out against SB 1037 , arguing that convictions, even those with DNA evidence, can be unreliable, mentioning the example of Fred Zain. 

Fred Zain was a forensic analyst at the West Virginia State Crime Lab from 1979 to 1989. Zain lied about his credentials and falsified evidence to produce convictions. His misconduct didn’t become known until 1993, by which time he had impacted at least 182 cases.

Garcia also argued that perpetrators of extreme crimes are already removed from society with life imprisonment. He expressed concern that SB 1074 could open the door to the death penalty being used more broadly in the future.

“Well, what it does is open the door for the death penalty in other situations, again, where it can be abused, where the state is killing somebody,” Garcia said. “My assumption is the perpetrator, the awful perpetrator of that crime, is spending the rest of his life in prison without any chance for parole.” 

At the time of publication, there was only one fiscal note attached to SB 1074. The Supreme Court of Appeals estimated that it would cost roughly $117,000 for an additional staff attorney to handle appeals. But a fiscal note from the Department of Corrections for a similar bill from  the 2025 Legislative Session had a much higher estimate.

That bill would have allowed the death penalty for killing an on-duty officer or first responder. The fiscal note estimated this would cost the Division of Corrections and Rehabilitation $1.4 million in new personnel and training, plus $25 million in new facilities. The bill never came to the Senate Floor. 

SB 1037 was passed with Garcia being the only audible “No” vote. The bill now heads to the Senate Finance Committee. If passed from Finance, it would then head to the full Senate, House and Governor’s desk, before becoming law.