Now, Virginia stands out as the first and only Southern state that has abolished the death penalty. How did this happen? The repeal law moved quickly, but the unwinding of the Virginia death penalty occurred over two decades. When Northam introduced repeal legislation, and both the House of Delegates and the Senate voted for it, in some ways, the Virginia death penalty had already withered on the vine. It had been almost 10 years since anyone had been sentenced to death in Virginia: the last death sentence was in 2011. Two people sat on Virginia’s death row.
In my book, “End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice,” published in 2017, I described Virginia as a case study in what has happened in the most formerly stalwart death-penalty states. Everything changed in Virginia about 15 years ago. In my study of the decline in the Virginia death penalty, I examined every capital trial since 2005, a group of 21 trials, and I compared those to 20 capital trials from 1996 to 2004. The law on the books did not meaningfully change during this time.
Instead, it was a defense lawyering effect: public defenders changed the ground game. In 2004, regional capital defense resource centers were created to handle capital cases in Virginia. They were in part a cost-saving measure. To be sure, they were also created in response to the threat of litigation regarding serious constitutional concerns with draconian pay caps in place for capital defense lawyers.
When those offices started their work, most of the time, when prosecutors sought the death penalty at a trial, they lost. Over half of those trials in Virginia resulted in a life sentence. In 2011, the last death sentence was imposed in Virginia. In the 1980s and 1990s, a death penalty trial might last a day or two. In cases like those of Earl Washington Jr., later exonerated by DNA evidence, the defense hardly called any witnesses at all to give the jury a reason not to sentence to death a man who was innocent. In the more recent trials, most striking was the increase in the numbers of defense witnesses called, greater use of expert witnesses and the way the defense told a meaningful story to humanize the accused.
In the process, death sentencing almost entirely disappeared in rural Virginia, and became limited to a handful of larger suburban counties. This has happened across the country, as you can see on my data website. In examining death sentencing patterns nationally, Alexander Jakubow, Ankur Desai, and I have found that declining murder rates were not associated with death penalty declines, except in the case of cases with more White victims of homicide (and not in the case of Black victimization). In contrast, Ankur Desai and I found strong defense-lawyering effects in state-level death sentencing declines.
The end of the Virginia death penalty is a fitting one. Jurors rejected death sentences in case after case, once they heard the full story of a defendant’s social history that they had been denied in the past. Public opinion changed, perhaps due to declining homicide rates, but also due to wrongful convictions like that of Washington. Prosecutors stopped seeking death sentences in rural counties, due to the expense, but no doubt also because they knew they might lose. Racial disparities continued to be documented in the use of the death penalty. Eventually, elected officials took action, but by that time the death penalty was a dead letter.
Virginia is a microcosm of a national story. The American death penalty is disappearing. Death sentences and executions have reached the lowest levels in decades. Public support has declined. President Biden expressed opposition to the death penalty during his campaign.
And yet, we should also watch carefully what happens in the wake of abolition. The trend toward the growing use of life-without-parole sentences accompanying the decline of the death penalty provides real reason to watch carefully what occurs post-abolition. What Virginia will also lose are the regional capital defender offices that did able defense work in the most serious criminal cases. That expertise, and particularly the role of social workers in investigating a defendant’s social history, is much needed. Thus, the lesson of defense lawyering effect, from the end of Virginia’s death penalty, is one we can bring to the broader movement to end mass incarceration and racial injustice in our criminal system.
Brandon Garrett is the L. Neil Williams Professor of Law at Duke University School of Law and the director of the Wilson Center for Science and Justice.