As Confederate Monuments Come Down, So Do Policies on Capital Punishment

Earlier this month the Virginia General Assembly abolished the death penalty, becoming the 23rd state to end capital punishment, but the first of the former Confederacy to do so. Along with Confederate monuments, the death sentence is largely seen as a remaining trace of leftover ideas from states below the Mason-Dixon line before and during the American Civil War.

Virginia’s history with the death sentence stretches long before the United States became an independent nation, executing Captain George Kendall in Jamestown colony in 1608 for spying for Spain. Since that first execution to the present day, the commonwealth has administered the death sentence more than any other state and has executed a higher percentage of its death-row prisoners than any other state.

Observers point out that the higher percentage of death-row prisoner executions was a result of Virginia’s history of subpar defense representation and procedural rules in Virginia’s court systems that made it impossible for defendants to bring up new evidence that their lawyers failed to bring forward during the trial.

Attempts to limit the death penalty have been tried two other times in Virginia’s modern history. In the 1990s, the state mandated that juries have to be told that any defendant given a life sentence would never be eligible for parole, therefore giving juries a viable alternative to the death sentence. Then, in 2002, regional capital defender officers were created to represent most, if not all, defendants in capital trials. Together these two procedural and legal changes led to a significant decline in death sentences throughout the state.

The United States began to put limits on the death penalty in the late 1970s, as Europe and international organizations had already begun to discontinue the practice altogether and define the right to life. In the first federal regulation to limit the death penalty in 1977, the Supreme Court ruled in Coker v. Georgia that it was unconstitutional to administer the death sentence for an individual when no one was killed.

In another limiting ruling over ten years later, the United States in 1986 banned executing individuals deemed as insane in the Supreme Court’s decision in Ford v. Wainwright, which was upheld in a 2002 case, Atkins v. Virginia, citing that “a national consensus had evolved against the execution of the ‘mentally retarded.’”

As for juveniles, in 1988, the Supreme court ruled in Thompson v. Oklahoma that in states without a specific minimum age limit it was unconstitutional to execute defendants who committed their crime when they were 16 years or younger. One year later, the Supreme Court upheld this age limitation by stating the Eighth Amendment does not preclude the death penalty for individuals who are sixteen or seventeen at the time the crime is committed. Even after signing the International Covenant on Civil and Political Rights in 1992, which prohibited executing those who were below the age of 18 at the time of their committed crime, the United States “reserved the right to execute juvenile offenders.” But finally, in 2005, the Supreme Court prohibited executing juveniles in Roper v. Simmons.

During the primaries for the 2020 Presidential Election, every Democrat candidate openly opposed the continuation of the death penalty, which makes Joseph R. Biden the first death penalty abolitionist to hold the office of President.

While the news of another state ending capital punishment is a positive step for abolitionists, federal law provides a workaround. In Title 18, Chapter 228 of the U.S. Code, which outlines the federal death penalty, Section 3596 provides that when the home state of the individual sentenced to death “does not provide for the implementation of a sentence of death, the court shall designate another State, the law of which does provide for the implementation of a sentence of death.” For abolitionists then, no individual is safe from the federal death penalty until all 50 states have abolished the practice.

Those who argue against the death penalty make arguments of morality and constitutional right. They argue that the Eighth Amendment prohibits “cruel and unusual punishmentEighth Amendment and Cruel and Unusual PunishmentThe Eighth Amendment to the U.S. Constitution prohibits excessive bail, excessive fines, and cruel and unusual punishments. Its Cruel and Unusual Punishments Clause limits the types and severity of punishment the government may impose, including conditions of confinement and methods of execution.Read more →” which many equate to the death sentence. Governor Ralph Northam of Virginia has campaigned on the abolition of the death penalty by using both moral and legal reasoning, stating, “A person is more than three times as likely to be sentenced to death when the victim is white than when the victim is Black.” Governor Northam is expected to quickly sign into law the legislation passed by the Virginia General Assembly to abolish the death penalty in Virginia.