Today, Virginia’s Governor Ralph Northam signed legislation that abolishes the death penalty in the state – a momentous event in the history of the Virginia, and of the American death penalty. No other Southern state has abolished the death penalty. Virginia has long been a leading death penalty state, particularly known for the speed with which it carried out executions after a sentence. And that said, this was an ending with more of a whimper than a bang.
The Virginia death penalty had already lapsed into non-use. It had been almost ten years since anyone had been sentenced to death in Virginia. Two people sat on Virginia’s death row, as compared to dozens in the 1990s. While in the past, it was considered a hot-button issue and candidates for office in Virginia would not lightly express critical views about the death penalty, Northam ran for office professing opposition to the death penalty, and introduced the legislation himself. Yet, in the fairly recent past, Virginia, which has the highest rate of executions of any death penalty state, has executed the third highest number of prisoners since the 1970s, after Texas and Oklahoma.
How did this happen?
Still more surprising, Virginia is a microcosm of a national story. The American death penalty is disappearing. Death sentences and executions have reached the lowest levels seen in decades. Public support for the death penalty has declined. More states have abolished the death penalty or imposed de facto moratoria. Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline.
I focused a chapter on Virginia in my book, End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice, which was published in 2017, but the patterns and trends that I described then still hold very much true today. All of the data concerning state-level death sentencing in the modern era is available online at www.endofitsrope.com.
Indeed, Virginia is a case in point.
Everything changed in Virginia about fifteen years ago. After that time, there were two or fewer trials a year in Virginia at which a judge or jury even considered imposing the death penalty. Still more surprising, over one half of those trials in Virginia resulted in a life sentence (11 of 21 cases from 2005 to 2011 at which there was a capital sentencing hearing resulted in a life sentence). In 2011, the last death sentence was imposed in Virginia. If one looks at the maps and data on my data website, the Virginia information is particularly striking. Death sentences were common across all sorts of small rural counties in Virginia in the 1980s and the 1990s. Then they quickly vanished.
Why is did this happen, and in Virginia of all places? In my study of the decline in the Virginia death penalty, I examined every capital trial since 2005, a group of 21 trials, and I compared those to a group of twenty capital trials from 1996 to 2004. (The University of Virginia law library hosts the collection that I assembled of trial records.) An earlier law review article reported this qualitative analysis as well. The law on the books did not meaningfully change during this time in ways that would make it harder to obtain death sentences in Virginia. (At the beginning of this time period, Virginia did adopt a life without parole (LWOP) alternative to the death penalty, and some additional analysis focused on the weak impact of such alternatives on death sentencing patterns at the state level).
The major change in Virginia was that in 2004 regional capital defense resource centers were created to handle capital cases. They were in part a cost saving measure: create public defenders to avoid appointing lawyers in every case. To be sure, they were also created in response to the threat of litigation regarding serious constitutional concerns with the caps in place to compensate the court-appointed lawyers. From 1996 to 2004, the crucial sentencing phase at which the judge or jury decided whether to impose the death penalty was typically cursory, averaging less than two days long. In the more recent trials, the average was twice that — four days — and still more striking was the increase in numbers of defense witnesses called, greater use of expert witnesses, and the added complexity of sentencing proceedings.
In the process, death sentencing almost entirely disappeared in rural Virginia, and became limited to a handful of larger counties. This has happened in other death penalty states; just take a look at the national map, and the time-series slider, on my data website. People think of the death penalty as something that conservative, rural communities care about, but, actually, after the late 1990s, death sentencing became more of a suburban luxury.
Although murder rates declined, it is likely that the establishment of four regional capital representation offices in Virginia made a larger difference. In examining death sentencing patterns nationally, Alexander Jakubow, Ankur Desai, and I have found that murder rates were not associated with death penalty declines, except in the case of cases with more white victims of homicide (and not in the case of black homicide victimization). In contrast, Ankur Desai and I found strong defense-lawyering effects in state-level death sentencing declines.
What Virginia will also lose are the regional capital defender offices that did very able defense work, particularly mitigation work, in the most serious criminal cases. That expertise, and particularly the role of social workers in investigating a defendant’s social history, will be lost. It is much needed in a wide range of criminal investigations. Further, nationally, the United States has seen a stunning rise in LWOP sentences, even as death sentences have reached modern lows.
The end of the Virginia death penalty is a fitting one. Jurors rejected death sentences in case after case, once they heard the full story of a defendant’s social history that they had been denied in the past. Public opinion changed, perhaps due to declining homicide rates, but also due to wrongful convictions like that of Earl Washington, Jr. Prosecutors stopped seeking death sentences in rural counties, due to the expense, but no doubt also because they knew they might lose at trial. Racial disparities continued to be documented in the use of the death penalty. Eventually, elected officials took action, but by that time the death penalty was a dead letter in practice.
And yet, we should also watch carefully what happens in the wake of abolition. The trend towards the growing use of LWOP sentences accompanying the decline of the death penalty provides real reason to watch carefully what occurs post-abolition in states like Virginia.
Brandon Garrett is the L. Neil Williams Professor of Law, at Duke University School of Law and the director of the Wilson Center for Science and Justice, and part of the leadership team for the Center for Statistics and Applications in Forensic Evidence (CSAFE). His new book, Autopsy of a Crime Lab: Exposing the Flaws in Forensics, is forthcoming next month from California University Press.