As reported by the Associated Press, the Virginia state legislature has passed a bill that will, with Governor Ralph Northam’s signature, abolish the death penalty in Virginia.
Earlier this month, Northam came out strongly in favor of the bill in an official release, arguing: “Virginia has executed more people than any other state. The practice is fundamentally inequitable. It is inhumane. It is ineffective. And we know that in some cases people on death row have been found innocent.”
Senate Bill No. 802 addressed exonerations by later DNA evidence, a possible disparity in death penalty imposition on those who are “indigent,” and the exclusion of jurors from death penalty cases because of their opposition to the death penalty, thus affecting the constitutionally protected right of a trial by one’s peers. Conspicuously missing from the proposed bill’s preamble was any mention of the death penalty’s grossly disproportionate application based on race.
As discussed in an article on capital punishment in Virginia written by Equal Justice Initiative (EJI), Virginia has the dubious distinction of having carried out the first execution in the United States in 1608. In his A Discourse of Virginia 1607-8, Edward Maria Wingfield, the First President of the Colony of Virginia, chronicled the circumstances that led to the first man put to death in the colony. George Kendall, a member of the first Council for the colony, was stripped of his right to carry arms, briefly imprisoned and ultimately killed by “being shott [sic] to death for mutiny.” Since then, according to EJI, “Virginia has executed nearly 1,400 people.” The last execution in Virginia not imposed by the Federal government was on July 6, 2017, when William Morva received a lethal injection.
The trend in the United States has generally been away from the use of the death penalty. According to a report compiled by the Death Penalty Information Center, 2020 had the fewest executions carried out by the states in 37 years – a decrease reflecting the fact that 13 states have ended the use of the death penalty since 2000, both through legislative action and governor’s orders.
Still, not all of these states chose to abolish the death penalty retroactively, which means some individuals remain on Death Row in those paces.
At the same time, despite this clear trend away from the use of the death penalty among states, there has been a recent spike in executions by the federal government. Before the end of Donald Trump’s term of office, “the federal government conducted more civilian executions than all of the states of the union combined.”
Nevertheless, the Supreme Court of the United States has been increasingly critical of the death penalty, ruling in an increasing number of cases that it violated the Constitution. These instances, all of which have been since the year 2000, include: 1) Atkins v. Virginia, where the Supreme Court held that it was cruel and unusual to put to death “a mentally retarded offender“; 2) Roper v Simmons where the Supreme Court held that individuals could not be executed for crimes committed as minors; and 3) Kennedy v. Louisiana, wherein the Supreme Court held that “[d]ifficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use. . .for crimes that take the life of the victim.” An extensive compilation of death penalty case law can be found at Oyez.1
Despite these trends, however, the death penalty is still legal in twenty-eight states (27 if Virginia’s ban is signed), the Federal Government and the United States Military. According to Amnesty International, as reported by the BBC, the only countries to carry out more executions than the United States in 2019 were China, Iran, Saudi Arabia, Iraq, and Egypt, in that order. Noticeably absent from the list are any other Western-style democracies.
The United Nations Human Rights Office of the High Commissioner reports that [s]ome 170 Member States of the United Nations — with a variety of legal systems, traditions, cultures, and religious backgrounds — have either abolished the death penalty or do not practice it. That being said, the International Covenant on Civil and Political Rights adopted by the UN General Assembly does not explicitly ban the practice, leaving it technically legal in the international community. However, it has become clear that the United States is an outlier in the international community.
Although Virginia’s demographics have changed dramatically with the increase of suburban sprawl from the District of Columbia, the state’s abolition of the death penalty is an important symbolic step toward the end of a racist, inconsistently applied, and arbitrary institution. Virginia, the home of the Confederate States of America’s capital during the Civil War, has become the first state of the former Confederacy to ban the practice.
As questions around the inhumanity of the death penalty remain, especially in the face of shortages of the drugs required for lethal injection, Virginia has taken its stand to end the practice and serve as an example for other states in the South — and the rest of the country — to do the same.
Christopher Becker is a civil litigator practicing in New York. Christopher graduated from the University of Alabama’s School of Law in 2016. There, he was a Senior Editor of the Civil Rights and Civil Liberties Law Review.