Virginia Legislature Votes to Abolish the Death Penalty

Updated 02.05.21

The former capital of the Confederacy is poised to become the first Southern state to abolish the death penalty.

The Virginia Senate passed a bill this week that would abolish the death penalty—a critical step forward for the state that has executed more people over the past four centuries than any other state in the country.

Since Jamestown colonists carried out the nation’s first execution in 1608 and went on to execute colonists for things like stealing grapes and killing chickens, Virginia has executed nearly 1,400 people. Virginia has executed 114 people—more than every other state except Texas—in the modern death penalty era.

Racial disparities were enshrined in Virginia’s early capital punishment laws, which provided that white defendants could be executed only for first-degree murder, while enslaved Black defendants could be executed for numerous nonhomicide crimes.

Even after those laws were declared unconstitutional, racial discrimination persisted. According to the Death Penalty Information Center, Virginia executed 73 Black men—but not a single white person—for nonhomicide crimes (rape, attempted rape, or robbery) between 1900 and 1969. Of those executed for murder during that period, 185 were Black and 46 were white.

The death penalty is a legacy of racial terror lynching. In Lynching in America, EJI explains that the death penalty is lynching’s stepchild:

As early as the 1920s, lynchings were disfavored because of the “bad press” they garnered. Southern legislatures shifted to capital punishment so that legal and ostensibly unbiased court proceedings could serve the same purpose as vigilante violence: satisfying the lust for revenge.

By 1915, court-ordered executions outpaced lynchings in the former slave states for the first time. Two-thirds of those executed in the 1930s were Black, and the trend continued. As African Americans fell to just 22% of the South’s population between 1910 and 1950, they constituted 75% of those executed in the South during that period.

More than 8 in 10 American lynchings between 1889 and 1918 occurred in the South, and more than 8 in 10 of the more than 1,500 legal executions carried out in this country since 1976 have been in the South. Researchers have shown that Southern counties that had more lynchings between 1883 and 1930 condemn more people to death today.

Virginia Senator Mamie Locke cited the death penalty’s link to lynching in articulating her support for the abolition bill. “In the 1940s and 1950s, they simply moved from the outside, to the inside—legal violence instead of vigilante justice,” she said. “It is not lost on anyone that those states that had a high number of lynchings correlate with their support of the death penalty.”

Recent research also confirms that the death penalty remains highly racialized: counties with higher proportions of Black residents are more likely to impose the death penalty.

Virginia Senator Scott Surovell, who sponsored the abolition bill, said that racial disparities in the application of the death penalty persist.

“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,” he said.

Supporters of the bill also pointed out that the death penalty is unreliable and does not deter crime. Since 1973, 174 innocent people have been released from death row.

“I cannot think of anything that is more awful, unspeakable and wrong for a government to do than to use its power to execute somebody who didn’t commit the crime they’re accused of,” Senator Surovell said as he introduced the bill. “The problem with capital punishment is that once it’s inflicted you can’t take it back, it can’t be corrected.”

The House version of the bill is sponsored by Delegate Mike Mullin, a prosecutor, and was voted out of the Courts of Justice Committee earlier Wednesday on a bipartisan vote of 15-6 with one abstention. It could come up for a floor vote this week and is expected to easily pass the House.

Governor Ralph Northam supports the death penalty repeal. “I applaud every Senator who cast a courageous vote today, and I look forward to signing this bill into law,” he said in a statement.

Virginia would become the 23rd state to abolish the death penalty, and the first Southern state to do so.

The death penalty declined to historic lows in 2020. As Colorado became the 22nd state to abolish capital punishment, states imposed the fewest new death sentences in the modern era and carried out the lowest number of executions in 37 years.

Following this trend, Virginia has not executed anyone since 2017, and no death sentences have been imposed since 2011. The Senate bill would commute the death sentences of the two men who remain on Virginia’s death row to life imprisonment without parole.

Update:  Virginia’s House of Delegates voted 57-41 on February 5 to abolish the death penalty. The House bill differs from the Senate bill passed earlier in the week on whether to allow some parole eligibility for certain offenses. Once that difference is resolved in conference committee, the bill will go to the governor, who has prioritized the abolition of capital punishment.