Unjustified Retribution: What We Can Learn from Virginia Lawmakers Abolishing Capital Punishment
March 24 of this year — amidst a backdrop of removing Confederate statues in my hometown of Richmond — a piece of legislation shocked Virginians. Governor Ralph Northam signed a bill to abolish the death penalty, making Virginia the first state of the former Confederacy to do so and the twenty-third overall.
The revocation came after an elongated legislative process. While Democrats were citing racial disproportionality, many Republicans continued to back the viability of capital punishment as a mechanism of justice for particularly heinous crimes.
On Feb. 3, the Virginia state Senate voted in favor of abolition 21-17 along party lines, while three Republicans joined all but one Democrat to push the bill through in the House of Delegates 57-14 on February 5.
In order to appreciate the weight of the passage, we must ask: What is the history of the death penalty in Virginia? Why now? At what cost?
The first recorded execution in the American colonies took place in 1608, when Jamestown colonists executed Captain George Kendall following accusations that he was spying on colonists for Spain.
Since then, the non-partisan Death Penalty Information Center reports that over 1,300 people have been executed in the state, with 113 executed since 1976. These 113 killings mark a higher percentage of death row inmates than any other state, and propel Virginia into second place — Texas holds first — for the highest number of executions total.
In holding that racial disproportionality is central to capital punishment, Democrats are correct. Racism plagued Virginia’s death penalty since its inception, and had become embarrasingly racialized by the time of abolition. In his speech at Greensville Correctional Center — which housed Virginia’s death row — Governor Northam admitted “We know that this Commonwealth’s use of capital punishment has been inequitable.”
In the twentieth century, according to the Death Penalty Information Center, more than 78 percent of the 377 individuals sentenced to death in Virginia were Black. For some crimes, the numbers are far worse. Black inmates were put to death 73 times for rape, attempted rape, and armed robbery between 1900 and 1977. No white inmate between 1900 and 1999 was executed for any of these crimes.
Racialization of the death penalty was codified in Virginia law since the state’s inception, with early capital punishment laws delineating that white defendants could only be executed for first-degree murder, while Black defendants could face hanging for a vast array of criminal acts, many of them nonhomicide-related.
Virginia Senator Scott Surovell, who patroned the abolition bill on the Senate side, confronted the fact that these racial disparities must not be ignored or trivialized.
“You’re more likely to get charged with a capital crime and found guilty of one if you’re a minority, suffer from mental illness, you’re low-income, you’ve got diminished intellectual capacity, or if you kill a white person and you’re not white,” said Surovell.
Supporters of the bill may fear the impact of this month’s gubernatorial election on the fate of capital punishment in the Commonwealth, and rightly so. Republican Virginia Delegate and, as of Nov. 2, state Attorney General-elect Jason Miyares staunchly supported the death penalty throughout the legislative battle.
“I think fundamentally it’s going to make Virginia less safe, less secure,” Miyares said in response to the law. “You have these cases that can only be defined by cruelty. In these very few cases, I think the ultimate punishment should be available to prosecutors for the ultimate crime.”
Yet scholarship proves that this notion is harmfully misguided. In reality, Constitutional scholar and Law Professor Corrina Barrett Lain points to three reasons one faces execution: they have a mental illness, have a history of trauma, or were confronted with substandard representation.
The statistics are endless. According to one study conducted in 2017, 43 percent of executed prisoners had at some point received a mental health diagnosis — more than double the national average of 18 percent — with significantly heightened cases of serious mental illness such as post-traumatic stress disorder. Another study conducted by the American Psychological Association reveals that ninety four percent of death row inmates surveyed suffered physical abuse as a child.
Racial disproportionality, high cost and some of the harshest procedural guidelines in the country — these were the conditions leading into the March decision.
Ultimately, March was a reminder that despite Virginia’s storied legacy — littered with gruesome racism and hidden harm — sometimes the right option wins out.
As a former Confederate stronghold, Virginia’s choice to abolish the death penalty represents much more than a slow nationwide shift to dismantle capital punishment as a means of control. It signals the willingness of Virginians to begin a process of reckoning with their state’s incontrovertibly dark history of racial domination. And maybe, just maybe, the revocation of the death penalty in my home state will serve as a beacon of progress guiding other members of the Confederacy to confront their histories, too.
The views expressed above are solely the author's and are not endorsed by the Virginia Policy Review, The Frank Batten School of Leadership and Public Policy, or the University of Virginia. Although this organization has members who are University of Virginia students and may have University employees associated or engaged in its activities and affairs, the organization is not a part of or an agency of the University. It is a separate and independent organization which is responsible for and manages its own activities and affairs. The University does not direct, supervise or control the organization and is not responsible for the organization’s contracts, acts, or omissions.
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