On Wednesday, the House of Delegates overwhelmingly passed SB 961, Sen. Mark Obenshain (R-Harrisonburg)'s legislation to close the “triggerman loophole,” by a vote of 74-26.

The bill reinstates accomplice liability for principals in the second degree and accomplices before the fact. Closing this loophole has been a priority of the law enforcement community for years, though Gov. Tim Kaine has vetoed past efforts and has promised to do so again.

“This bill enjoys broad support among legislators, prosecutors, and law enforcement, all of whom see this legislation as necessary for the effective prosecution of those who willfully, deliberately, and intentionally participate in the commission of a capital murder, but happen not to be the individual pulling the trigger,” says Obenshain, noting that the bill is endorsed by the Virginia Crime Commission, the Virginia Association of Commonwealth's Attorneys, the Virginia Sheriffs' Association, and other law enforcement organizations, and has the support of all four major party candidates for governor.

He adds, “Closing the triggerman loophole will increase public safety by restoring an important tool to prosecutors.”

The existing triggerman loophole allows criminal defendants who willfully and deliberately participated in a premeditated murder that is otherwise covered as a capital offense to escape prosecution for capital murder if they did not actually pull the trigger. It is a distinction unheard of in common law and unknown to Virginian law until 1979.

The loophole was created at a time when the courts had called the constitutionality of the death penalty into question, and Obenshain says it is long overdue to close it.

“Under current Virginia law, even someone like Charles Manson could not be prosecuted for capital murder, despite the fact that he orchestrated the Tate-LaBianca murders in the 1960s,” says Obenshain.

The majority of states with the death penalty make co-conspirators in capital murder cases eligible for the death penalty. Supporters of this change cite a number of especially aggravated murders where the existing triggerman rule has thwarted prosecutors. In a particularly heinous crime in 1999, it was only possible to obtain a death sentence against one of three men who abducted, raped, and brutally murdered a woman.

Moreover, when John Allen Muhammad, the Beltway sniper, was prosecuted in 2003, he contended that he was not eligible for the death penalty without proof that he actually pulled the trigger, citing this very loophole. His capital conviction was upheld on appeal, but only because he was charged with an act of terrorism.

The bill previously passed the Senate 24-16 and now heads to Kaine. A similar bill (HB 2358) introduced by Del. Todd Gilbert (R-Woodstock), passed the Senate with amendments Tuesday.

“I hope Gov. Kaine will reconsider his previous decisions to veto the bill,” says Obenshain. “Those who are equally culpable for a capital murder should be equally held to account under the law.”