Jurisprudence

With Death Penalty Abolition, Virginia Is Becoming a Test Lab for Progressive Reform

Virginia’s move will mark the first time in U.S. history that a majority of states ban executions.

Coode holds up signs that say "abolish the death penalty" and "no more state sanctioned executions."
Anti-death penalty activist Judy Coode of Pax Christi International demonstrates in front of the U.S. Justice Department’s Robert F. Kennedy Building July 13, 2020 in Washington, DC. Chip Somodevilla/Getty Images

On Friday, the Virginia House of Delegates passed a landmark piece of bipartisan legislation to abolish the death penalty in the state with the most executions in American history. The vote follows passage earlier this week in the state senate. Gov. Ralph Northam has promised to sign the bill, which will make Virginia the 23rd state in the country without a death penalty law on the books.

As Cassandra Stubbs, the director of the ACLU’s Capital Punishment Project, told me, Virginia’s move will mark the first time in U.S. history that a majority of states have a formal ban on executions, including three governor-enacted state moratoriums. (There was a brief four-year period in the 1970s when the Supreme Court barred executions, but states maintained their capital punishment laws or updated them and eventually resumed executions.)

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“These are enormous momentum swings when you look at where we were, say, ten years ago,” Stubbs said.

Critically, the measure was passed via legislation as opposed to gubernatorial moratorium, which can be reversed whenever a new governor takes office. Virginia juries haven’t imposed a new death sentence in ten years, but the state executed a prisoner as recently as 2017 and there are two inmates that remain on death row. Stubbs is hoping other states will follow Virginia’s example and go the legislative route to end the death penalty.

“At this point when we know so much about the arbitrariness and the discrimination and the unfairness, really the injustice of how the death penalty gets carried out in America, moratoriums are not enough,” Stubbs said. “We need our leaders to work for repeal and we need our leaders to make inroads to grant commutations.”

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As the Charlottesville Daily Progress reported, the Commonwealth of Virginia has carried out 1,390 executions since 1608, the most in the history of anywhere in America, according to Stubbs. Since the Supreme Court revived the death penalty in 1976, meanwhile, Virginia has executed 113 people, the second-highest toll in the United States, according to the Daily Progress. This history makes today’s move even more significant.

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“It’s a state that chose to break from the legacy of lynching and discrimination and chose to do so explicitly because of racial bias,” Stubbs said after the measure passed the Virginia House of Delegates 57-41 with three Republicans joining the Democratic majority to pass abolition. “We’ve seen repeal in a number of states around the country, but this is a large southern state and it’s just an enormous momentum changer.”

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During House of Delegates debate, abolition advocates made racial bias inherent to the death penalty in the United States a prominent argument.

“The death penalty is the direct descendant of lynching. It is state-sponsored racism and we have an opportunity here to end this today,” said Del. Jay Jones.

Stubbs also said that the Trump administration’s brutal and unprecedented lame duck execution spree in its final days in office further illustrated to the nation the arbitrariness and cruelty of the death penalty as its applied in the United States, particularly by a Supreme Court that rubber-stamped Trump’s executions without any serious deliberation.

“There is no question that President Trump really held up a mirror to the injustice of the death penalty through that atrocious execution spree,” she said. “As a long-time lawyer in this field, I was appalled not only by the Trump administration but by Supreme Court. We saw that the Supreme Court failed to stand up for the Constitution, it failed to even grapple with or apply or consider many of the very serious constitutional challenges that many of the death row prisoners had filed. Instead they vacated those lower court decisions [blocking executions], often in the middle of the night without reasoned opinions.”

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Stubbs is now hopeful that President Biden will decide not to leave the remaining federal death row inmates liable to the whims of a future Republican president or the current Supreme Court.

“There is so much pressure on President Biden to grant commutations,” she said. “We can’t count on the courts and we can’t count on whoever is going to be in office next—we need commutations to make sure that doesn’t happen again.”

Back in Virginia, the move towards racial justice is part and parcel with the progressive action taken by state leaders in the legislature after Democrats took control of both chambers last year following a victory in the 2019 election. On Friday, Democrats in the House of Delegates also passed a bill on a party-line 55-42 vote to make Virginia the first southern state to legalize marijuana, with the Senate set to take up passage later in the day.

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Indeed, Virginia has become a test lab of sorts for bold progressive social justice reforms in a previously purple state that has trended blue, which could serve as a model for the rest of the country as demographic shifts change the political makeup of large southern states like Georgia and Texas.

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In addition to the death penalty ban and marijuana legislation, Virginia legislators are considering a proposal that would restore voting rights to people convicted of felonies. They are also taking up legislation to codify the emergency pandemic voting rights reforms that helped take Virginia from the second-most difficult place to vote in the country in 2016 to 12th easiest place to vote last year, according to an analysis by researchers at Northern Illinois University.

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Speaker of the Virginia House of Delegates, Eileen Filler-Corn, told me last month that her body would be taking steps aimed at “making Virginia even more inclusive, [including] automatic expungement [of criminal records of non-violent offenders], the restoration of rights legislation, creating a Virginia LGBTQ advisory board, and of course marijuana legalization.” Last week, the House of Delegates passed a bill mandating race and ethnic reporting in vaccine distribution, in order for the state to get a better handle on racial disparities in its efforts to bring the COVID-19 pandemic under control.

Filler-Corn has pushed for this legislation while directly confronting members of an opposing caucus who have taken to rejecting the very premise of democracy. Like what we’ve seen at a national level this week with the vote to remove Rep. Marjorie Taylor Greene from her committee assignments for years of hate speech and conspiracy theorizing, Filler-Corn removed three Republican members from committee assignments after they asked Congress to overturn the election in Virginia, which President Joe Biden won by 10 points, and after at least one member participated in the rally that led to the Capitol insurrection.

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Soon, Virginan voters will get a chance to show their support or disapproval for this bold agenda. As one of the few states with off-year elections, Virginians will go to the voting booth in November to elect a new legislature and governor. While Virginia has trended increasingly blue in recent years, it was very recently a purple state controlled by a Republican legislature. It also has a recent history of voting out whichever party last won control of the White House.

Filler-Corn is confident that aggressive progressive policy action will lead to political results.

“Honestly, everything that we’re passing, we’re just following exactly what we said to our voters when we were running,” she said. “…I am confident that we will maintain the majority and be able to continue to do good and pass great legislation for Virginia.”

We’ll know in November how voters respond when Democratic leaders actually govern on a Democratic agenda. Whatever happens next, national Democrats should start looking to Virginia.

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