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It Took Virginia 400 Years to End the Death Penalty. It’s Not a Switch We Can Flip On and Off.

Is our criminal justice system so infallible that it should green-light actions as irrevocable as taking another person’s life? Hardly. Very few people of means go to death row.

Virginia execution chamber
The execution chamber at the Greensville Correctional Center in Jarratt, Va. From 1985 to 2017, Virginia’s death row inmates were given the choice between lethal injection and electrocution, and the state administered lethal injections to 82 people.
(Virginia Department of Corrections)
Of all the things policymakers can be indecisive about, the death penalty shouldn’t be one of them. It is, after all, about the most profound and irreversible thing a government can do.

Yet this year, not three years after Virginia banned capital punishment, Republican freshman Del. Tim Griffin submitted a bill to reinstate it. Mercifully, it was doomed from the outset in the Democratic-ruled House of Delegates. With all due allowances for naïveté, political posturing or whatever Griffin’s motivation, the death penalty isn’t a light switch you flip on and off.

It took Virginia more than 400 years to end capital punishment. When the General Assembly finally did it in 2021, there was even miniscule Republican buy-in on final votes that made Virginia the only former Confederate state to dismantle death row in favor of life imprisonment without the possibility of parole for the most heinous offenses.

Virginia is among 23 states that have abolished the death penalty. Six others have halted executions by governors’ orders. Only five states executed people last year, and death sentences were imposed in just seven states, according to the nonprofit Death Penalty Information Center.

Things were once quite different. Until this century, Virginia was an enthusiastic death penalty backer and practitioner. Since Jamestown, Virginia has executed an estimated 1,300 people.

The U.S. Supreme Court halted capital punishment in the latter third of the 20th century after it found its disparate implementation unconstitutionally “cruel and unusual.” After the court reinstated it in 1976, Virginia executed 113 inmates, according to the DPIC. That ranks third behind Texas (586) and Oklahoma (123) — body counts that will soon grow.

A Waning Appetite

Just the suggestion that a candidate might not support killing people to prove that killing people is wrong was politically disqualifying. It was a common Republican tactic to force Democratic candidates in statewide general elections to pledge support for the death penalty, putting them at odds with many in their own base to remain viable with the broader electorate.

In this century, Republicans failed to notice that Virginia’s appetite for state-sanctioned killings was waning and had been for some time. Part of that is because of demographic changes, especially in the moderate, educated, affluent and fast-growing suburbs.

Another factor was a by-product of a hugely successful Republican initiative that George Allen brought to the governor’s office from his 1993 election landslide.

After the General Assembly overwhelmingly enacted Allen’s abolition of parole in 1994, it meant that an inmate sentenced to life in prison would actually spend the rest of his life in prison. For jurors, that assurance eased the moral crisis they felt when deciding whether to prescribe death for a person sitting steps away from them. Assured that the convict could never walk free again, jurors increasingly eschewed death sentences and the haunting knowledge that they played a role in taking someone’s life.

The numbers tell the story. After the court-ordered hiatus, it took a few years for new death penalty convictions to exhaust their federal and state appeals. Executions resumed in Virginia in 1982. For the rest of that decade, eight people perished in the state’s death chamber. During the 1990s, however, the decade parole was abolished, the total soared to 58. From 2000 through 2009, the total was cut in half, to just 28. And from 2010 through 2017, the year William Morva became the last convict executed in Virginia, it dropped to eight.

The ’90s were also the most robust decade for executions nationally, peaking with 98 in 1999, according to the DPIC.

Death penalty politics reached a significant political flashpoint in Virginia’s 2005 gubernatorial race between Democrat Tim Kaine, the lieutenant governor at the time and now a U.S. senator, and Republican Jerry Kilgore, who had been the state’s attorney general. In a Kilgore campaign ad, the grieving father of a murder victim claimed that Kaine, a lawyer who had defended a death penalty client and a Roman Catholic with a faith-based objection to the death penalty, would have spared Adolf Hitler from execution.

The ad was widely panned as a gratuitous, tone-deaf overreach, and it boomeranged on Kilgore’s campaign as it was already imploding. Kaine quickly aired a rebuttal in which he spoke directly into the camera and said that he would “carry out death sentences imposed by Virginia juries because that’s the law.”

And he did — 11 times from the day he took office in January 2006 through the end of his term four years later. The last to be executed under Kaine’s watch was John Allan Muhammad, convicted as one of the two snipers who terrorized Virginia, the District of Columbia and Maryland in 2002, shooting 10 people dead and injuring three.

Who Goes to Death Row?

Capital punishment is an emotional issue that almost evenly divides the nation. A 2023 Gallup poll showed that 50 percent of those surveyed said they felt the death penalty is unfairly applied compared to 47 percent who felt it was fairly applied.

Consider the obvious: Very few people of means go to death row. It’s a different story if you’re Black or poor. Of the 113 Virginia inmates executed in 1976, 52 of them — 46 percent — were Black, a ratio more than double the state’s Black population of 20 percent. For defendants who can’t afford skilled, experienced death-penalty litigators, the odds are even worse.

Is our criminal justice system so infallible that it should green-light actions as irrevocable as taking another person’s life? Hardly.

According to the DPIC, 196 people sentenced to death nationally since 1973 have been exonerated, including Virginia’s Earl Washington Jr., who was poor and Black. Washington, with an IQ of 69, spent 16 years incarcerated — nine on death row, once within days of being executed — because of false and misleading forensic evidence, woeful trial counsel and his own coerced confession. Gov. Doug Wilder commuted his sentence to life imprisonment in 1993. Gov. Jim Gilmore pardoned Washington in 2000 after DNA testing, not available at the time of his trial in 1984, exonerated him from the murder and rape for which he was convicted.

Death by Hypoxia

Griffin’s misbegotten bid to restore capital punishment foundered just before an Alabama execution underscored misgivings Americans increasingly harbor about terminal punishment more suited to despotic regimes.

Like many states unable to procure the drugs necessary to execute people by lethal injection, Alabama tested a novel way to kill: subjecting the condemned — strapped to a gurney — to pure nitrogen, depriving him of oxygen. Alabama’s attorney general called it “a textbook execution,” promised further hypoxia executions in Alabama and offered to tutor other states in its use.

Associated Press writer Kim Chandler, a witness to the execution, described something much more unnerving. For about two minutes, according to AP’s first-person account, condemned murderer Kenneth Eugene Smith shook and writhed violently, “in thrashing spasms and seizure-like movements,” the force of which “caused the gurney to visibly move at least once.”

There’s no way to inflict death on a confined, terrified human being that doesn’t horrify an ordinary person. That’s because no matter the method — an intravenous drip of lethal drugs, electrical voltage, a noose, a firing squad or nitrogen gas — the end result is a fresh corpse. Each is just as final, its victims just as eternally dead.

If those methods knot your stomach, then maybe our conversations should be about whether governments should execute people, not how.

Bob Lewis covered Virginia government and politics for 20 years for the Associated Press. Now retired from a public relations career, he is a columnist for the Virginia Mercury, where this column originally appeared. The Virginia Mercury is part of the States Newsroom network. Read the original here.

Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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