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Why Virginia’s abolition of the death penalty is a big deal for the state and the US

In 1608, Jamestown colonists executed a man named Capt. George Kendall, who had been accused of spying for Spain.

It was the first recorded execution in what would later become the Commonwealth of Virginia, and the first for the fledgling American colonies. Over the next 400 years, more than 1,300 people would be executed in the state, according to the non-partisan Death Penalty Information Center.

That came to an end last week, when Gov. Ralph Northam signed into law legislation abolishing capital punishment, making Virginia the first Southern state to do so.

It’s a move that experts and death penalty abolition advocates say has great import, not only for Virginia, but for the South and the rest of the country — emblematic not only of the nationwide decline of capital punishment, but also a reckoning with its history as a tool of racial oppression.

“If we can do it, surely other states can make this happen,” said the Rev. LaKeisha Cook, criminal justice reform organizer of the Virginia Interfaith Center for Public Policy, who had advocated for the repeal. “Because truth be told, people probably never even expected Virginia to be able to abolish the death penalty.”

Now, “there is a sense of inevitability that the death penalty is going to disappear,” Robert Dunham, executive director of DPIC, told CNN. “Maybe not this year, and maybe not next year, but there is a sense that it is going to happen.”

Virginia: ‘A leading death penalty state’

The repeal is a landmark moment in large part due to Virginia’s historic, prolific use of the death penalty.

Not only did it carry out the colonies’ first recorded execution, but the commonwealth has carried out more executions than any other state dating back to 1608. Since 1976 when the Supreme Court reinstated capital punishment across the country, the state has executed 113 people, per DPIC, second only to Texas.

“No state that has used the death penalty that long and that often has ever before abolished capital punishment,” Dunham told CNN. “And that is significant for that fact alone.”

Virginia stands out from other states that have done away with capital punishment in terms of just how many executions it has carried out, according to Brandon Garrett, a professor of law at Duke University who studies and has written extensively about the death penalty. He said the state was a harbinger of both the death penalty’s rise in the 1970s and ’80s and its decline in more recent years.

While “a number of states have repealed the death penalty,” Garrett said, “they were all states that didn’t sentence many people to death to begin with.”

Colorado, for example, abolished the death penalty in March 2020, but according to DPIC, it had executed just one person since 1975.

“Virginia was a leading death penalty state,” Garrett told CNN. “So it’s far more significant that Virginia has decided to repeal.”

Virginia’s measure did not have universal support. State lawmakers passed the legislation on near-party lines, with Republicans arguing that the death penalty provides justice to the victims of heinous crimes and their families.

Angela Kyle, the daughter of a Virginia state trooper who was shot to death in 1985, testified at a Senate committee hearing in January that the death of her father had left an “amazing gap” in her life. After the 1996 execution of her father’s killer, she said, an “amazing load went off. My nightmares stopped.”

A sign of racial justice

One of the main arguments for abolition was how disproportionately the death penalty is applied to Black defendants. Northam pointed to this fact at the bill’s signing last Wednesday, calling the death penalty “fundamentally flawed.”

“Capital punishment is a direct descendant of slavery, lynching and Jim Crow,” said Cook of VICPP, who also spoke at the bill signing. It was used during slavery as a tool to “control the Black population and discourage rebellion,” she said. After the Civil War and emancipation, lynchings were used to try to maintain what was “considered to be social order.”

“Capital punishment was birthed out of that, it was birthed out of Jim Crow and birthed out of lynching,” she said.

Of the 377 inmates executed in Virginia in the 20th century, 296 of them — more than 78% — were Black, according to data from DPIC. And while 73 Black inmates were executed for rape, attempted rape or armed robbery, no White inmate was executed for any of those crimes between 1900 and 1999.

As it fought for repeal, VICPP emphasized the death penalty’s legacy and connections to slavery and lynching. Cook and other advocates held prayer vigils at lynching sites throughout the state to highlight the connection between the death penalty and lynchings and to educate the public about “the racist legacy of capital punishment,” she said.

Their cause was helped, Cook believes, in part by the recent series of federal executions carried out by the Trump administration, which made capital punishment a focus for people who otherwise weren’t thinking about it. But she also pointed to last summer’s “cries for racial justice,” she said, “with the police killings of Breonna Taylor and George Floyd.”

“People were already primed to talk about capital punishment, talk about racial justice,” she said. “When we made the rallying cry that we needed their support, people were ready to fight.”

Dunham said Virginia’s repeal had “extremely important implications for race relations in Virginia,” and he believes it’s symbolic for all of the former Confederacy, describing Virginia as the “gateway” to abolition of the death penalty in the rest of the South.

In recent years, more people outside the Black community have started to understand arguments about the racial injustice of the death penalty, Dunham said. African Americans had already “experienced the use of the criminal legal system as an instrument of racial oppression,” he said, so the argument didn’t need to be made to them.

But people outside the Black community have become more aware of these issues as well, he said, and that “changes the dynamics of the debate about criminal legal reform,” Dunham said, including capital punishment.

Garrett said Virginia’s repeal was an “important precedent” that will show other Southern states they can “shed their Jim Crow past,” too. That could have an impact on state lawmakers who look to neighboring states to take cues on what’s “legislatively feasible,” he said.

Signals the ‘erosion’ of capital punishment

The repeal of the death penalty in Virginia is also reflective of capital punishment’s decline across the country, experts said.

According to DPIC, the commonwealth is the 11th state in 16 years to abolish the death penalty. With it, the United States has, for the first time, crossed a 50-50 threshold, where 26 states either do not authorize or will not carry out a death sentence. Twenty-three have repealed the death penalty, while 3 others have implemented moratoriums on their death penalties.

A huge impact has been made at the county level, where Dunham says prosecutors haven’t pursued the death penalty or are seeking it less and juries haven’t imposed it, contributing to a “downward spiral in the number of new death sentences sought.”

By the time of its abolition, Virginia hadn’t sentenced anyone to death since 2011, and the last execution occurred in 2017. By last week, there were only two men left on death row. Their sentences will now be changed to life in prison without parole.

“Virginia,” he said, “had essentially eliminated (the death penalty) by attrition.”

Garrett echoed that, telling CNN, “The death penalty in Virginia went out with a whimper, not a bang.”

Legislative repeal was really the “last straw,” he said, preceded by years of other factors that paved the way — including the exonerations of wrongfully convicted individuals.

According to DPIC’s research, since the 1970s, 185 people have been wrongfully convicted and sentenced to death. Northam pointed to one such case Wednesday: Earl Washington Jr. had been sentenced to death in 1984, only to be exonerated 16 years later by DNA evidence.

“While Mr. Washington is the only person we know of rescued from Virginia’s death row,” Northam said, “can we really, truly be sure that there aren’t others?”

Changes in public opinion have played a role as well.

According to a Gallup poll published in 2019, a majority of Americans — 60% of those polled — said they supported life imprisonment without parole as a punishment for murder over the death penalty. It was the first time in at least 30 years most Americans said they favored a life sentence, Gallup said.

Cook said she hopes advocates and lawmakers in other states — along with the federal government — take inspiration from what’s happened in Virginia. And she believes more states will follow.

“I am very optimistic that we will see states following suit — if not this year, next year,” she said.

“We’re just really hopeful that now what has happened in Virginia will help other Southern states and other states throughout the country to take the same step and finally just get rid of this horrible public policy,” she said.

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