david kerr H&S

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State Sen. Scott Surovell’s bill to eliminate the death penalty didn’t even make it to the floor. That was a shame. The death penalty, in one form or another has been on the books in Virginia since Colonial days. Curiously, while notionally popular, the death penalty as an issue is a topic that many people find themselves on both sides of at the same time. To many the death penalty seems like an outdated and ineffective form of punishment while others consider it appropriate for the “worst of the worst.” This kind of mixed reaction isn’t unique to Virginia. Twenty-one states have abolished the death penalty. Virginia currently has four people on death row; Texas has 20 and Alabama has 23. California and some other states still sentence criminals to death, but haven’t carried out an execution in years. While others, such as Texas, apply it regularly. It’s a debate, to borrow from a long-ago English member of Parliament, “that’s fraught with sharp curves and dead ends.”

There are some strong arguments in favor of the death penalty. For one thing, some criminals seem like poster children for the death penalty. The crimes they have committed are just that heinous. Then, there is the deterrence factor. There have been the occasional anecdotal reports of criminals who, in spite of prodding from their accomplices, refused to carry out a murder because they knew the state had the death penalty. It’s a compelling argument, but it’s still a sentence that leaves a lot of Americans uncomfortable. 

One argument, proving more powerful as various older crimes have been reinvestigated and convictions overturned, is the fallibility of the justice system. The justice system makes mistakes. Evidence isn’t collected correctly, cases aren’t sufficiently investigated, and sometimes trial counsel is poor. Then there is DNA evidence. Thanks to the work of the “Innocence Project,” 21 people awaiting execution have found themselves exonerated using DNA analysis techniques that weren’t available at the time of their conviction. The high number of times we get it wrong leaves many to wonder whether or not we should have such an absolute sentence on the books at all.

Virginia has always been a death penalty state. At the time of the American Revolution, the Commonwealth had 39 death penalty crimes on the books. In addition to murder and treason, this rather long list of capital crimes included stealing farm produce. Thomas Jefferson who was governor of Virginia at the time, after extensive research and reflection presented the general assembly with a new death penalty statute that only included treason and murder. Jefferson’s progressive bill failed by only one vote.

 

After the Supreme Court reversed course in 1976 and lifted its short-lived national prohibition on the death penalty, Virginia was uncharacteristically slow in carrying out executions. The first person on death row wasn’t executed until the 1980s, but with a sort of pent-up enthusiasm, we made up for lost time. Between 1976 and 2019 Virginia executed 113 people. That’s the second only to Texas. Former Gov. George Allen, who ran on a law and order platform in 1993, led the charge. Indeed, during the 20 years that followed, Virginia had the shortest elapsed time between sentencing and carrying out an execution than any death penalty state.

However, all that enthusiasm seems to have waned. Courts and juries aren’t opting for capital punishment nearly as frequently as they were just 10 years ago. One of the reasons is the option of “life without the possibility of parole.” Before this, a lot of jury members would express their concern that if they didn’t give the convicted the death penalty, the criminal would have a chance for parole and might only serve 20 or 30 years. This didn’t sit well. However, “life without the possibility of parole” — in other words life means life — gave juries an option that was a lot easier to live with than sentencing someone to death.

Sen. Surovell is probably right. Talking about the death penalty in the 21st century has something of a medieval penalty quality. Since it is now applied so rarely, is so expensive (it costs a fortune to execute someone), and since we can’t even come up with an acceptable procedure for carrying it out, maybe it’s just time to let it pass into history. Perhaps, we’ve grown out of it as a society. Thomas Jefferson might have liked that thought.


David Kerr is an adjunct professor of political science at VCU and has worked on Capitol Hill and for various federal agencies for many years.

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