Virginia’s Racist History With the Death Penalty Could Finally End

General Assembly member files bill to eliminate Virginia’s death penalty.

RICHMOND – A nearly 300-year-old practice could be put to rest this month, as Virginia’s General Assembly considers ending the death penalty.. Del. Lee Carter (D – Manasses) introduced a bill to end the practice last week.

“This is about ending a barbaric practice that brings with it the possibility of the most extreme injustice that the state can levy. [That is], ending someone’s life and then finding out later that they didn’t do it,” Carter said.

Carter’s proposed legislation removes references to the death penalty from the Virginia’s Code. This effectively bans the death penalty by removing it from the list of potential punishments that the state can inflict. It also says those currently facing the death penalty will have their sentences changed to life imprisonment. These prisoners will not have the possibility of parole.

State-Sanctioned Death in Virginia

Virginia is one of 28 states in the U.S. where the death penalty is currently legal. Among those states, the Commonwealth is a particularly glaring example of problems with equitable enforcement of the death penalty.

“We used Virginia as an example of the historically racist application of capital punishment. In Virginia, there’s no question that the death penalty is an historical extension of the racial hierarchy that produced slavery, lynching, and Jim Crow segregation,” said Robert Dunham, executive director of the Death Penalty Information Center (DPIC).

According to Virginians for Alternatives to the Death Penalty (VADP), Virginia has a long and dark history with the death penalty. The first execution in the U.S. took place in Virginia in 1608. Throughout its history, the Commonwealth has executed over 1,400 people. That’s the most of any state. Virginia also holds the record for executing the most women and the youngest children.

The process of putting someone to death in Virginia is also the fastest in the U.S. The average death row prisoner in the Commonwealth spends less than eight years awaiting execution.

The Legal History of the Death Penalty

The death penalty is as old as the creation of laws themselves. However, today the U.S. is among only ten counties in the world that put their own citizens to death. Iran, Saudi Arabia, Iraq, China, Egypt, Pakistan, Somalia, South Sudan, and Yemen are the only other countries that use capital punishment.

The death penalty was briefly illegal in the U.S. after the Supreme Court found in the 1972 case of Furman v. Georgia that it violates the Eight Amendment of the Constitution. This amendment protects citizens from “cruel and unusual punishment” from the government.

However, the death penalty becomes legal again in 1976. This happened when the Supreme Court took up the issue in the case of Gregg v. Georgia.

RELATED: General Assembly Reshapes Virginia’s Legal System.

The Racist History of the Death Penalty

During the colonial and antebellum periods, the government mostly put white people to death, according to the DPIC’s report on the racial enforcement of capital punishment. At the time, white people who commit murder were primarily the victims of executions.

When slavery becomes commonplace in the U.S., Black people received the death penalty at a higher rate and for a wider range of social infractions. During slavery, capital punishment was a tool for controlling Black populations. It was also used to discourage rebellion.

“There’s a long history of the death penalty being used as an instrument of racial discrimination and oppression in this country,” said VADP Executive Director Michael Stone.

Before the Civil War, laws in Southern states like Virginia had different punishments for crimes based on the race of the accused.

“Under Virginia law in the 19th century, any crime that a white person would be punished by three years of prison or more would subject Black people to execution. So the death penalty is steeped in a very racist past,” Stone said.

Less Overt Means

The passage of the 13th and 14th Amendments forces states to end this practice. However, Southern states found a way to continue to disproportionately put Black defendants to death through less overt means. Instead of keeping mandatory sentencing minimums along racial lines, states instead left sentencing decisions up to juries.

“The state responded by changing mandatory punishments to discretionary punishments. And that allowed all-white juries to sentence Black defendants to death but act with leniency against white defendants,” Dunham said. “We tracked the exercise of discretion in Virginia throughout the 20th century from the start of the 20th century until the modern death penalty in the 1970s. And we found that in that entire 70 year span, no white person was sentenced to death for any offense other than murder. But Black people were sentenced to death repeatedly for rape, attempted rape, and for robbery.”

Once it became up to juries to decide whether someone faces the death penalty, the race of the person accused remained a factor. However, a more telling indicator is the race of the victim.

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The Race of the Victim

“Prior to the Supreme Court outlawing the death penalty in 1972, race of the perpetrator was the overwhelming determinant of whether someone would be sentenced to death or not. Since that time, under the new legal mechanism that the Supreme Court outlined, the race of the victim is the determining factor largely in who receives death and who does not receive death,” said Stone.

According to a report on the death penalty by the American Civil Liberties Union (ACLU), the courts condemned 13.5% of capital case defendants between 1978 and 2001 to death. 16.7% of cases where a white person is the victim resulted in the death penalty during that time. In cases where the victim is Black, courts sentenced 5.3% of defendants to death. This means  those under arrest for a crime against a white person are three times as likely to face execution than if their victim is Black.

Innocent Casualties

The U.S. judicial system as a whole, and especially the Commonwealth, have proven that they are far from perfect, and in fact often make mistakes. In cases that involve the death penalty, those mistakes have incurable consequences.

“Nationally, since 1976, there’ve been 172 exonerations of people sentenced to death in this country. When you compare that to the number of executions carried out, that’s one innocent person being exonerated for every nine executed since 1976. That’s an extraordinarily high error. And that does not include a substantial number of people who were executed where doubt about their guilt was present,” said Stone.

According to the ACLU, there are currently 3,500 people facing execution in the Commonwealth. The union’s report states that it’s safe to assume a fair number of those people are innocent.

One of the most famous examples of this in Virginia is the case of Earl Washington Jr.

Washington received exoneration within nine days of his execution after DNA evidence revealed his innocence. However, many innocent people are dead because evidence confirming their innocence did not appear in time. According to the ACLU’s report, some other individuals recently found to be innocent in Virginia include Roger Coleman, Joseph O’Dell, Herbert Bassette, Joseph Payne, and Joseph Giarratano. For some, that evidence came too late.

Like Being ‘Struck by Lightning’

Supreme Court Justice Steven Breyer said in his book “The Court and the World: American Law and the New Global Realities” that receiving the death penalty is like a lighning strike. That’s because besides race, there are several other factors that influence whether someone receives the death penalty.

“It is very random in its application. In that, the same crime is treated very differently from jurisdiction to jurisdiction.  It depends on the attitude of the prosecutor. It depends on the judge. Where the trial is taking place. It depends on the quality of the defense attorney. It depends on the composition of any one jury,” said Stone. “There have been instances where there have been multiple trials around the same crime where less culpable persons have been sentenced to death while more culpable persons got life in prison without parole. There seems to be very little rhyme or reason between who receives a death sentence and who does not.”

Inadequate representation is also a major problem contributing to wrongful convictions. According to the ACLU, the quality of legal representation is notoriously poor for death row inmates.

The primary means of execution in the U.S. has varied between hanging, electrocution, the gas chamber, firing squad, and lethal injection. Most states with the death penalty use lethal injection today. According to Dunham, the modern shift towards using lethal injection is no less cruel than previous methods.

“Most of the states moved away from clearly cruel methods like electrocution to lethal injection believing that it was a less inhumane and less painful way of executing a prisoner,” Dunham said. “They no longer have the luxury of believing that lethal injection is humane. The autopsy results from more than 200 lethal injection executions demonstrates with medical certainty that it’s not humane.”

Executions in Virginia

Virginia puts people to death using either electrocution and lethal injection. The Commonwealth’s lethal injection procedures include using a sedative called midazolam. That’s followed by rocuronium bromide to halt breathing. Then the heart stops after an injection of  potassium chloride.

Though it’s a sedative, midazolam doesn’t actually knock victims unconscious. It also does not prevent them from feeling pain.

“Medazolin as a sedative is perfectly good medicine for procedures like colonoscopies or tooth extractions or stuff like that. But it doesn’t prevent pain. And it also doesn’t make you reliably unconscious and unsensing. You may appear to be unresponsiv,e but it doesn’t knock you out or make it so you can’t feel,” said Dunham.

Rocuronium bromide is a paralyzing agent that stops the lungs from functioning.

“It paralyzes the body so that when the witnesses see the execution they don’t see what’s going on. Because the body’s paralyzed. But at the same time the body’s paralyzed on the outside, the lungs stop working. And you have a sensation of suffocation. Because the body wants to breathe but it cannot get the air in. So at the same time that you have a buildup of fluid caused by the first drug. You have an inability to breath that is caused by the second drug,” Dunham said.

The Sensation of ‘Burning at the Cross’

The last drug, potassium chloride, is also known as   “liquid fire.”

“That is an accurate description which we know because in some botched lethal injections in which the potassium chloride was injected directly into the skin instead of into the bloodstream, the prisoners suffered physical chemical burns,” said Dunham.

In addition to being painful, the process is also not slow.

“We now know it is 15-20 minutes, sometimes longer, of experiencing the feeling of being waterboarded, drowned, suffocated, and chemically burned at the stake,” Dunhan said.

How Much Does Virginia Pay to Kill?

Supporters of capital punishment also say it saves taxpayers money. They claim that the cost of imprisoning people for life is higher than killing them. Once again, they are mistaken.

It’s actually incredibly expensive for a state to put its citizens to death. No analysis of how much Virginia spends to execute a prisoner has happened yet, but other states have reportedly spent millions of dollars every year to kill people.

For example, a study by the Urban Institute Justice Policy Center on the cost of enforcing the death penalty in Maryland found that each capital-eligible case where prosecutors consider the death penalty costs the state about $1.8 million. That’s $700,000 more than a comparable case where the death penalty is not on the table.

The same study found that convictions resulting in the death penalty cost taxpayers about $3 million per case.

The Death Penalty Appeals Process

According to the VADP, the greatest costs associated with the death penalty occur before and during the trial. This is in part due to the fact that courts in Virginia can not deny appeals to death sentences. The Commonwealth shoulders the cost of these appeals proceedings.

“In every other criminal conviction, the sentence is final. You can only have an appeal heard if you can convince the judge there is a compelling reason. In capital murder cases with the death sentence, there are mandatory state appeals. Courts must hear the appeals of death cases and must consider them and issue opinions. In addition, after the state court process the entire process begins again with the federal courts,” said Stone.

However, even if legislators abolish all appeals, the death penalty would still be more expensive than alternative sentences, according to VADP.

“Trials take much longer, much higher court costs, much higher defense costs, much higher prosecutorial costs. And the litigation that goes on in the accounting phase of the trial takes a lot of time and a lot of resources to do it in a way that is constitutionally valid. So there are great big expenses upfront,” Stone said.

Why Now?

Ten states have repealed the death penalty over the last 15 years. According to lawmakers and advocates, the time is right for Virginia to join them.

Nationwide, studies show support for the death penalty is waning. In 2019 a poll by American analytics company Gallup found 60% of those surveyed support life in prison over the death penalty.

Use of the death penalty is also declining nationwide. According to the DPIC, the rate of new death sentences have fallen more than 85% in recent years compared to the 1990s. During the peak of executions in the ‘90s, about 300 people died due to executions every year.

Like the rest of the country, executions in Virginia are subsiding.

“Virginia has executed more people than any other state but Texas since the death penalty came back in the 1970s. But they have essentially, the state has essentially cleared the row with executions. And the combination of carrying out executions and not putting anybody new on death row has almost eliminated the death penalty in Virginia by attrition,” said Dunham. 

There are currently two people on death row in Virginia. Their names are Anthony Juniper and Thomas Porter.

While individual states have been executing fewer  people, the Trump administration is increasing the rate of federal executions.

‘An Execution Spree’

In July last year, the U.S. government began executing federal prisoners after a 17-year hiatus. The majority of executions that year were federal prisoners. This was the first time in history that states collectively executed fewer people than the federal government.

During the second half of 2020, the federal government carried out executions against ten people. Theses cases also set records including for condemning the first Native American to death for the murder of a member of his own tribe on tribal lands. A teenage offender was also executed for the first time in 68 years. For the first time in 57 years, the federal government carried out executions of people who committed crimes in states without the death penalty. Two prisoners with intellectual disabilities and two prisoners with serious mental illnesses were also killed by the federal government in 2020.

“The Trump administration is going on an execution spree on their way out the door and that is absolutely unconscionable. It’s a barbaric practice that has no place in modern society,” Carter said.

According to a yearly summary by the DPIC, about half of the 17 defendants executed in 2020 were people of color. These people include five  Black individuals, one Latinx person, and one Native American person. Seventy-six percent of these executions were for the deaths of white victims.

Two Bills to Ban the Death Penalty

In addition to Carter, some other legislators are also proposing legislation to ban the death penalty this year. Sen. Scott Surovell (D – Fairfax) says he plans to introduce a bill to ban capital punishment soon.

“I asked legislative services to draft me a bill abolishing the death penalty and converting the two individuals who have currently serving death sentences to life in prison,” Surovell said.

Both Carter and Surovell introduced legislation to ban the death penalty during the 2020 regular session. However, their bills died in committee. According to Carter, this was due to an error in the report on the financial impact of their legislation.

“After the deadline for submitting budget amendments, I got a new fiscal impact statement that said actually it would cost $70,000 to not kill two people. And therefore I would need a budget amendment. But because it was past the deadline, that meant that the bill was dead on arrival,” said Carter.

The impact statements for their previous bills estimated that the cost of eliminating the death penalty is $72,630. However, Surovell says it fails to consider how much money the Commonwealth will save in legal costs.

Regardless of the fiscal impact, Surovell said the cost of putting an innocent person to death is too high.

“Our criminal justice system has proven it’s not perfect and has been capable of convicting innocent persons. That possibility should keep any sensible person up at night. And the idea that the government might execute somebody that is completely innocent is pretty horrific,” Surovell said.

What’s Next?

The General Assembly convenes its 2021 session on January 13. According to advocates, they’re unsure if legislation to ban the death penalty will pass the legislature.

“If it was a normal legislative session I think we would have, that there was a reasonably good chance that it would pass,” said Stone. “With so much uncertainty, it’s really hard to predict the outcome of anything in this coming legislative session.”

One way individuals can help ban the death penalty in Virginia is to contact their representatives and demand they vote in favor of these bills. You can find your representative and their contact information here.

Meg Schiffres is Dogwood’s associate editor. You can reach her at [email protected].