On March 24, Virginia became the 23rd state and the first southern state to abolish the death penalty, marking the first time a majority of US states either have abolished the death penalty or have formally committed to not carrying out a death sentence.
The first recorded execution in the US (then European colonies) happened in Jamestown, Virginia, in 1608, and since 1976, Virginia has executed the second-highest number of people after Texas and executed the highest percentage of people on its death row of any state.
Though advocates had lobbied Virginia to abolish the death penalty for decades, governor Ralph Northam’s support for abolition, calls for racial justice and justice reform in Virginia and across the country in response to George Floyd’s murder, and changes in practice and public opinion made abolishing it a priority in Virginia’s 2021 legislative session. On February 22, the Virginia Senate and House of Delegates voted to abolish the death penalty and resentence the two men on Virginia’s death row to life without parole.
As we recognize this important step for Virginia, the South, and the US, we must acknowledge the racist and classist nature of the death penalty, address significant inequities in other criminal penalties, and pursue alternatives to the death penalty that do not cause similar harms and do not condemn people to die in prisons.
The death penalty is rooted in the histories and legacies of lynching, Jim Crow, racism, and classism
“In the 1940s and 1950s, [violence] simply moved from the outside, to the inside—legal violence instead of vigilante justice,” said Virginia state senator Mamie Locke. “It is not lost on anyone that those states that had a high number of lynchings correlate with their support of the death penalty."
In the last century, more than 78 percent of people executed in Virginia were Black, despite Black people representing less than 20 percent of the population. Before Virginia abolished the death penalty for cases that did not involve a murder, all nonhomicide crimes that resulted in execution were of Black people—no white people were executed for the same crimes.
One infamous case is the Martinsville Seven, in which seven Black men were convicted of raping a white woman and sentenced to death. Historians believe at least five of the men were innocent.
Of the 185 people nationwide who have been exonerated since 1973 after being wrongfully sentenced to death, more than half were Black. Virginia’s executions, though notable in the total number of Black people who have been executed, are unfortunately representative of death row demographics across the country.
Virginia also has procedural rules that penalize capital defense attorneys for not raising a legal claim at the right time or in the right way. Because many people facing death penalty charges cannot afford to pay an attorney for their initial trial, many are assigned public defenders who often lack the resources and time to dedicate to high-quality representation, reinforcing a cycle of inequity.
Abolishing the death penalty alone is not enough to address racial and socioeconomic injustices in the criminal legal system
Though Virginia joins a growing list of states that have recently abolished the death penalty, such legislation has limitations.
In 2019, Governor Northam committed to opposing all additional mandatory minimum sentence legislation for the remainder of his term. Virginia’s death penalty abolition legislation partially keeps that promise, reclassifying 15 types of capital murder as aggravated murder punishable by life in prison and allowing judges to impose a sentence less than life, except in the case of murder of a police officer in the line of duty. But past evidence shows judges have rarely imposed lesser sentences—meaning the legislation could effectively create mandatory minimum sentences.
Many states have replaced the death penalty with life without the possibility of parole (LWOP), continuing to sentence people to die in prisons. Though death sentences have been declining for decades, LWOP sentences have continued to increase at an alarming rate, up 66 percent since 2003. At the beginning of 2020, 55,945 people were serving LWOP sentences, 22 times the number of those on death row.
Though anti–death penalty advocates tout these legislative changes as achievements toward a more humane and just criminal legal system, the increasing reliance on LWOP as an alternative contradicts these goals. Proponents of LWOP cite its lower cost, disregarding that much of these savings come from reductions in the mandatory appellate process meant to ensure accurate sentencing.
Racial disparities also persist in LWOP sentences, with Black people facing 56 percent of all LWOP sentences, despite comprising only 13 percent of the US population in 2016.
Reliance on longer sentences increases mass incarceration and exacts a significant toll on communities, all while failing to improve the system. Some advocates have proposed capping life sentences at 20 years, and others advocate for abolition of the prison system as the only way to create a more equitable and just society.
Though Virginia’s abolition of the death penalty is a significant and historic step toward reducing harms caused by the criminal legal system, advocates, policymakers, and other stakeholders should pay critical attention to which systems they propose to replace it.
The Urban Institute has the evidence to show what it will take to create a society where everyone has a fair shot at achieving their vision of success.