2/10/2021 Virginia Delivers a Rebuke to Trump's Execution Spree and Points to the End of America’s Death Penalty | Austin Sarat | Verdict | Legal ...
Virginia Delivers a Rebuke to Trump’s Execution Spree and Points to the
End of America’s Death Penalty
9 FEB 2021 AUSTIN SARAT
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 23" 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.
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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
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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.”
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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.
POSTED IN: CRIMINAL LAW, CRIMINAL PROCEDURE
TAGS: DEATH PENALTY, VIRGINIA
AUSTIN SARAT
Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson
Cromwell Professor of Jurisprudence and Political Science at Amherst College.
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