In October, perhaps for the first time, Virginia executed a man who still had a petition pending before the U.S. Supreme Court. That is what you would expect from Virginia, long known to be a lean, mean death penalty machine. The Old Dominion has the fastest rate of executions of any death penalty state, and since the 1970s it has executed the third-highest number of prisoners. (Oklahoma just edged out Virginia by one execution this past year. Texas still maintains the lead).
Yet if you turn from executions and examine judge and jury decisions to sentence people to death, Virginians start to look far more cautious. Virginia has sentenced just 20 people to death in the past decade. This is a steep drop from the 1990s, when five to 10 people each year were sentenced to death. No one has been sentenced to death in Virginia since 2011. No governor imposed a death penalty moratorium; there was no hold-up with lethal injection drugs; and there has been no change in Virginia death penalty law. Why have there been no death sentences in four years—in Virginia?
To uncover what has been driving this decline, I have studied every capital trial in Virginia in the past decade. Remarkably, despite having already convicted a defendant of a capital murder or murders, despite their power to eliminate people with any serious qualms about the death penalty from the jury, and with crime labs, experts, and police at their disposal, Virginia prosecutors usually lose at sentencing. More than half of the capital trials in Virginia in the past decade resulted in a sentence of life without parole, not the death penalty.
The law in Virginia has not changed, but the lawyers have. Competent teams of trial defense lawyers may be the reason for the sudden death penalty decline. In 2004, regional capital defense resource centers set up by the Legislature began to handle capital cases. The offices have attorneys and investigators dedicated to handling death penalty investigations and trials. They do not always get assigned to such cases, because judges sometimes appoint different attorneys, but they usually do.
Take the case of John “Jose” Rogers, charged with capital murder and tried in 2006. The lawyers from the regional center used what they described to me as a “big firm, New York” approach. They aggressively investigated their client the moment they were assigned to the case. Five lawyers worked as a team. Five investigators worked on the case, two of whom specialize in “mitigation,” or tracking down evidence that might humanize their client and make a jury reluctant to impose a death sentence. At a four-day sentencing hearing, the team presented 21 witnesses, compared with just five presented by the prosecutors.
The defense showed how Rogers was the victim of horrifying abuse by his father, who beat and tortured him, making his childhood what they called “a virtual experiment in atrocity, in brutality.” Perhaps most moving was testimony from his younger brother, whom he had tried to shelter from the abuse. The defense also presented a corrections officer who described Rogers as a model inmate. The jurors were initially deadlocked, but eventually unanimously decided to exercise their power of mercy: Rogers received a life sentence.
In the 1990s, people facing the death penalty in Virginia did not get a team of specialists. The trials showed it. More cases went to trial, cases that today would be readily settled with a plea. At those 1990s trials, the momentous decision whether to let the state take a person’s life was almost an afterthought. Judges even told the jury not to expect much. In one case, after a conviction, when the sentencing hearing began, the judge told the jury, “it won’t be a long hearing,” and “not certainly like anything that you’ve been through to get to this point.” Looking at an entire group of Virginia trials from 1996 to 2004, I found that the sentencing trial was typically cursory, averaging less than two days long, with most of the testimony by prosecution witnesses, such as coroners or family members of the victims.
Take the case of Brandon Hedrick, whose lawyer said he “did not prepare” for sentencing at all, because he “got the impression the case was going to plead out.” Despite concerns about his lawyer’s work at trial, he lost appeals and other challenges in court, and he was executed in 2006. Or take Edward Bell, whose lawyers presented almost no case at all during sentencing. The judge overseeing a request for an appeal asked the lawyer how could one present “literally no mitigating evidence,” because after all, “it couldn’t get any worse” than presenting nothing. The judge found the lawyer inadequate but decided that correcting those failures would not have made enough of a difference in Bell’s case. Bell was executed in 2009.
Then there’s Earl Washington, sentenced to death in the mid-1980s, whose lawyer put on almost no sentencing case at all and had never previously handled a death penalty trial. The jury in his case never heard how Washington confessed due to intellectual disability. For years the federal courts all said his lawyer did a perfectly adequate job. Washington was innocent. He was exonerated by DNA testing after more than 17 years in prison.
It doesn’t take some kind of Dream Team to effectively represent a capital defendant. But it does take a team—a team of specialized capital defense lawyers and investigators, working together in an office, who understand the very different way that a death penalty case must be litigated from its inception.
While in the 1990s, death sentencing lasted just a day or so, in trials since 2005, the average was doubled—to four days of sentencing. Still more striking was the increase in the numbers of defense witnesses called and the more extensive use of expert witnesses, particularly to develop mental health evidence. Jury selection has also become far more state-of-the-art in Virginia.
Better defense lawyering may also uncover wrongful convictions like Earl Washington’s. Murders are sometimes frustratingly hard to solve. Even in recent death penalty trials there were sometimes contested facts regarding guilt, sometimes because confession statements were not taped. Many death penalty cases in Virginia also continue to involve confession statements supposedly made to informants, who may have ulterior motives for testifying, or eyewitness identifications, which have been shown to be unreliable. Unfortunately, most Virginia agencies still do not require the recording of interrogations or use best practices for lineups to minimize identification errors from witnesses.
What remains of the Virginia death penalty? In the past decade, only seven counties imposed death sentences in Virginia, and these were almost all large counties like Fairfax and Virginia Beach. Back in the 1980s and 1990s, a smattering of small and large counties imposed large numbers of death sentences, even rural places like Pittsylvania County and Portsmouth City. Those small counties have now lost their taste for capital trials.
Stephen Bright has famously argued that the death penalty is imposed “not upon those who commit the worst crimes, but upon those who have the misfortune to be assigned the worst lawyers.” Now that adequate lawyers have arrived in Virginia, the death penalty map has totally changed. Many, many people were executed who would never be sentenced to death with decent lawyers. And how about states that to this day lack such trial teams? And what about all the people who are not charged with capital murder—or who are not former governors or CEOs who can afford to hire a team?
Meanwhile, the “new” Virginia death penalty is almost never imposed. A death sentence is so freakish that it raises constitutional concerns. Last summer, in Glossip v. Gross, Justice Stephen Breyer wrote a much-discussed dissent in which he noted “dramatic declines” in death sentences within states like Texas and Virginia and called for briefing on whether the death penalty now violates the Eighth Amendment. If that day of reckoning comes, the collapse of the Virginia death penalty may be a bellwether for the demise of the American death penalty.