Virginia Delivers a Rebuke to Trump’s Execution Spree and Points to the End of America’s Death Penalty

Posted in: Criminal Law

Last week, both houses of the Virginia General Assembly passed legislation abolishing that state’s death penalty. What remains is for a conference committee to iron out the few differences between those bills and for Governor Ralph Northam, who has already announced his desire to end capital punishment, to sign the legislation into law.

When this process is completed, Virginia will become the 23rd state to abolish the death penalty. It is always risky to identify inflection points in the quest to change well entrenched practices, but what is happening in Virginia is an unusually important signal of the momentum that now attaches to ending capital punishment in the U.S.

That state’s death penalty history started well before America became an independent nation. Indeed, the first execution in American history took place in Jamestown, Virginia, on December 1, 1608, when George Kendall was put to death by firing squad for being a British spy.

In 1612, the colonial governor codified capital punishment and attached it to crimes as minor as stealing fruit or killing chickens without their owner’s permission, and as significant as treason and murder.

While Texas is generally thought to be the leading death penalty state, since its founding Virginia has actually executed more people than any other state.

More recently, in the so-called “modern” period of capital punishment, since 1976, Virginia has executed 113 people. That is more than any state but Texas (which has put 570 people to death).

Virginia retains primacy, even now, in some areas: it has executed a higher percentage of those sentenced to death than any other state. According to a Death Penalty Information Center Report, “That high percentage was the combined product of poor defense representation and the most draconian procedural rules in the country, under which defendants were denied any judicial review of legal claims that their lawyers failed to raise at the right time or in the right manner, even when through no fault of the defendant a lawyer missed a filing deadline.”

And, in its average time of eight years from conviction to execution, Virginia has led the way in its relative efficiency in carrying out death sentences.

When Governor Northam signs the abolition legislation, Virginia will become the eleventh state to rid itself of the death penalty since 2007, making the last fourteen years the most active abolitionist period in American history.

More important, this former home to the capital of the old Confederacy will be the first state below the Mason-Dixon line to join that list.

The South has long been the region where the death penalty has been most popular, with 1,240 of the 1,532 executions carried out since 1976 occurring there. Its death penalty history has been haunted by a shameful legacy of extra-judicial killings and lynchings. And Virginia is no exception: between 1880 and 1926, more than 90 people, not surprisingly most of them African Americans, were lynched in that state.

As Robert Dunham, executive director of the Death Penalty Information Center, put it when asked about Virginia’s forthcoming abolition, “Just as Confederate monuments are being dismantled, this vestige of Confederate law is also facing dismantling. That historical context is a central part of the repeal.”

Virginia’s abolition of capital punishment will also deliver a decisive rebuke to the Trump administration and its shameful execution spree. It will remind Americans that what Trump did was and is out of step with the country.

Across the United States, public support for capital punishment is at its lowest level in decades, as are death sentences and executions. Politicians are now willing to openly express doubts about capital punishment without fearing that they will be labeled soft on crime. In fact, in this year’s Democratic presidential primaries, every candidate openly opposed the death penalty. With Joe Biden’s election, America has its first abolitionist President.

Supporters of capital punishment are on the defensive. Death sentences and executions take place in fewer and fewer states and in fewer counties within those states. Proposals to introduce the death penalty where it has not previously been used or to reinstate it once it has been abolished have, with few exceptions, gained little traction. And those proposals are more narrowly tailored and cautious than ever.

The specter of convicting and executing the innocent, the fact of racial discrimination in death sentencing and executions, and the continuing reality of botched executions have all fueled the growth of a new abolitionist politics.

Abolitionists have traditionally opposed the death penalty in the name of the sanctity of life, or they have emphasized the moral horror of the state’s willfully taking the lives of any of its citizens, or they have claimed that it is incompatible with the Eighth Amendment’s prohibition of cruel and unusual punishment. These are all important moral arguments.

But new abolitionists focus less on moral values than on legal values.

They use the familiar language of due process, equal treatment, fairness. They focus on the simple but incontrovertible proposition that the innocent should not be executed. They speak the language of the “American mainstream”—of scrupulous, fair-minded people committed to the view that even in death cases, and perhaps especially in death cases, justice must be done justly.

Wisconsin’s former senator, Russ Feingold, succinctly summarized the appeal of new abolitionist arguments when he observed, “The continued use of the death penalty demeans us. [It] is at odds with our best traditions.”

This is the argument that has carried the day in Virginia and is doing so across the country.

As Governor Northam noted in his State of the Commonwealth address last month, “A person is more than three times as likely to be sentenced to death when the victim is white, than when the victim is Black…. There’s another important reason: What if the system gets it wrong? If you think it can’t happen, you’re wrong. It can happen, and it has happened, here in Virginia.”

Abolitionists should celebrate what is happening in Virginia, but we need to remember that the end of the death penalty will not come easily or quickly. As Trump’s use of the federal death penalty reminds us, for every two steps forward, the United States may occasionally take a step back on its road to abolition.

Still, something that seemed unimaginable at the start of this century, that the United States would join most of the rest of the world in abolishing capital punishment, now seems very much on the horizon of possibility. And Virginia, for the moment, is leading the way.

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