Civil rights advocates are celebrating the news that Virginia is the first southern state poised to abolish the death penalty, after previously being one of its most prolific practitioners, but there’s plenty standing in the way of a nationwide end to the practice.
On Monday, Virginia’s legislature sent governor Ralph Northam bills that would end the practice, which he is expected to sign. He has criticised the death penalty as the “machinery of death.” The state has executed 113 people since 1976, more people total than any state except for Texas, and most of them were people of colour.
The state hasn’t executed anyone since 2017, or levied any capitol sentences since 2011, but Tim Kaine, US senator for Virginia, called the impending abolition in the “death penalty capital” a “singular achievement marking a repudiation of racism and a commitment to justice” in an op-ed in theWashington Post.
“Thankfully, the repeal of the death penalty by its leading practitioner gives hope that work for justice is not in vain,” he wrote. “Virginia’s progress shows that it is possible for all.”
Elisabeth Semel, director of University of California Berkeley law school’s Death Penalty Clinic, said the decision was an especially salient one coming from Virginia, the former seat of the pro-slavery Confederacy. The state has the “ignominious distinction,” as she put it, of executing a higher percentage of people on death row than anywhere else.
“Virtually every study that has look at its administration across this country, including in California, almost every other state has found that the death penalty is disproportionately imposed on people who are Black, or where the victim is white, or in cases where where the victim is white and defendant is Black,” she said. “Race is the most salient feature of the American death penalty. It is, and it has always been that way.”
She said that colonial America incorporated the practice from England and grafted it onto the systems of slavery and Jim Crow, where legal codes often specified harsher capital punishments for Black people. This continued in spirit into modern times, Ms Semel says, where defendants who were poor or Black often had an entirely separate track through the justice system in states like Virginia that led to death row. She saw this firsthand while working on capital cases with the American Bar Association in Virginia in the late ‘90s at the height of US executions.
“The speed with which cases in Virginia went from trial to execution, which was then about 4 years, was absolutely stunning,” she said. “The common features were the same as the common features in every state. They were all poor. They were disproportionately African-American, and they had all too often been denied adequate representation at trial.”
Still, despite the change, and promises from Joe Biden that he would “work to pass legislation to eliminate the death penalty at the federal level, and incentivise states to follow the federal government’s example,” in a small majority of states, including more ostensibly liberal ones like California and Oregon, the death penalty remains on the books. And it’s still deeply entrenched in the justice systems of places like Georgia, Alabama, and Texas, according to Ms Semel.
But there’s growing momentum on Capitol Hill to end the practice at the federal level, amid a resurgent racial justice movement, and widespread outrage after the Trump administration revived federal executions after a seventeen-year pause and killed thirteen people.
Civil rights groups have pressed president Biden to follow through on his campaign proposals and end the federal death penalty once and for all.
“Any criminal legal system truly dedicated to the pursuit of justice should recognise the humanity of all those who come into contact with it, not sanction the use of a discriminatory practice that denies individuals their rights, fails to respect their dignity, and stands in stark contrast to the fundamental values of our democratic system of governance,” a coalition of more than 220 rights group wrote in a letter to Mr Biden in January.
“If we are to truly forge a nation as good as its ideals, the federal government must take swift action to commute the sentences of those currently under federal sentence of death and end the government’s cruel, ineffective, and irreversible use of the death penalty.”
Merrick Garland, the Biden administration’s nominee for attorney general, said during a Senate confirmation hearing on Monday that he had “great” concern about capital punishment at the federal level, and expects a new moratorium on federal executions.
“A most terrible thing happens when someone is executed for a crime that they did not commit,” Mr Garland said.