“The death penalty system is fundamentally flawed—it is inequitable, ineffective, and it has no place in this Commonwealth or this country.”
— Governor Ralph Northam
Despite the fact that debates surrounding capital punishment hinge literally on matters of life and death, the federal government allows individual states to oversee the administration of the death penalty, and indeed, to decide whether to continue the practice at all. To date, 23 states have abolished the death penalty, with Virginia becoming the most recent state to vote for abolition.
On March 24, 2021, then-Governor Ralph Northam signed HB 2263 into law in front of Virginia’s Greensville Correctional Center, officially abolishing capital punishment in Virginia. Majorities in both the Virginia House of Delegates and the state Senate had both voted to abolish capital punishment, an extraordinary development for a state that has executed 113 people since 1976—second only to Texas—and nearly 1,400 overall.
HB 2263 was also remarkable for another reason. When Governor Northam signed the bill into law, Virginia became the first southern state to abolish capital punishment. It marked a break from Virginia’s long standing use of the death penalty, which dated all the way back to 1608, when Jamestown colonists performed the first of many executions in Virginia. It also helped move the state away from one of the deeply entrenched legacies of slavery and Jim Crow: that capital punishment in practice partly originates from and has continued to perpetuate racial prejudice and racial violence against Black Americans, especially in the U.S. South.
In fact, it was this history of racial injustice that informed Virginia’s decision to abolish capital punishment outright, rather than to rewrite its guidelines to reconcile the practice with the Eighth and Fourteenth Amendments. At the bill-signing ceremony, one of its sponsors, Delegate Michael Mullin, spoke about how Virginia’s capital punishment history was “inextricably linked” to racism and white supremacy. Mullin, who previously served as a prosecutor, pointed out that since the first Virginia execution in 1608, “only four times out of nearly 1400 [executions] was the defendant white and the victim Black.” State Senator Scott Surovell also linked the death penalty to racial disparities. In an interview with The Washington Post, Surovell stressed that capital charges are more likely to result in a guilty verdict if “you’re a minority, suffer from mental illness, you’re low-income, you’ve got diminished intellectual capacity, or if you kill a White person and you’re not White.” Reverend Dr. LaKeisha Cook, the justice reform organizer for the Virginia Interfaith Center for Public Policy who helped organize the legislative outreach campaign for abolition, explicitly connected death penalty abolition to racial justice, stating that “capital punishment is a direct descendant of slavery, lynching and Jim Crow.”
Americans have long debated the morality of the death penalty. Even as prisons rose to prominence in the late 18th century, in part to reduce the use of corporal and capital punishment, people still looked for ways to make capital punishment more “humane.” Both the electric chair, which debuted in 1890, and lethal injection, first used nearly 100 years later, were supposed to introduce some measure of distance between executioner and convict. These changes and justifications did little to assuage the controversy.
To more fully understand debates over the ethics of capital punishment, one has to consider the practice in the context of America’s racial history. Black defendants have been disproportionately sentenced to death and executed. This inequality was built into the justice system, sometimes explicitly. For instance, until 1866, Virginia’s laws limited the death penalty for rape exclusively to Black men. Even beyond capital punishment, the American legal system has a history of racially-discriminatory sentencing. When slavery was abolished, white southerners turned to the criminal legal system to retain the control they once wielded over African Americans. In prisons, Black inmates were (and still are) disproportionately punished with practices like solitary confinement. Southern states rewrote “slave codes” into “Black codes,” to restrict freedpeople’s ability to exercise the full rights of citizenship. These discriminatory practices upheld the convict leasing system, in which prisons offered prisoner’s labor to private companies or individuals, enabling states to continue profiting from forced labor. At the same time, outside the official criminal legal system, lynch mobs of self-described vigilantes targeted African Americans accused of crimes with extralegal executions that peaked between the 1890s and 1920s.
The Equal Justice Initiative (EJI), a non-profit organization that has campaigned tirelessly against the death penalty, has meticulously documented the historical connections between lynching culture and capital punishment. EJI’s “Lynching in America” report argues that southern legislatures gradually shifted to capital punishment “so that legal and ostensibly unbiased court proceedings could serve the same purpose as vigilante violence.” Southern executions quickly outpaced lynchings by the mid-20th century. The report notes that a correlation exists between counties that had lynchings and those that now have high death sentencing rates.
As the Jim Crow sociopolitical order slowly eroded in the mid-20th century and the budding civil rights movement gained traction, overt racist practices became less acceptable, from a legal standpoint. Civil rights advocates saw an opportunity to shift the discussion on capital punishment by demonstrating it to be racially discriminatory. Rather than attacking capital punishment head on, the NAACP focused on jury selection and other due process violations, as courts had historically subjected Black defendants to all-white juries and rushed trial proceedings for swift convictions. However, as courts addressed blatant discrimination in the way they administered trials and treated defendants, it became harder for civil rights advocates to document racial discrimination against Black defendants. A subtle but salient shift was underway, as the legal system steadily adopted “race-neutral” language that obscured racially-charged practices and dismissed claims of racial discrimination.
In 1949, in Martinsville, Virginia, all-white juries sentenced seven young Black men to death for allegedly raping a white woman. In response, NAACP attorneys launched a direct attack on capital punishment itself. In his book on the Martinsville Seven, Eric Rise noted that the case became the earliest instance “in which lawyers marshalled statistical evidence to prove systematic discrimination” on the basis of race. Attorneys requested death row records from the Virginia State Penitentiary for those convicted of rape, and found that since 1908 the state had executed 45 Black men and zero white men.
State and federal courts were unconvinced, maintaining that in this case, the trial court had followed all proper procedures to ensure an unbiased, “lawful” sentence. Virginia’s Supreme Court, furthermore, reasoned that accepting the race-based argument could effectively abolish the death penalty — either “no Negroes could be executed unless a certain number of white people” received the same punishment, or white defendants could eventually bring an equal protection argument and thereby omit capital punishment altogether as unconstitutional, regardless of race. In 1951, Virginia executed each of the Martinsville Seven.
Attorneys and activists continued to advocate for Black defendants and draw attention to the inherently racialized nature of capital punishment.. In 1966, the NAACP Legal Defense and Educational Fund (LDF) mounted a moratorium strategy that involved keeping all capital cases, regardless of the defendants’ race, on appeal in state courts while attorneys waited—hoped—for the U.S. Supreme Court to rule capital punishment unconstitutional. This strategy succeeded in halting executions nationwide from 1968 to 1977.
With the moratorium’s success, many believed that capital punishment was almost a dead letter by the early-1970s. That became temporarily true when, in 1972, the Supreme Court ruled in Furman v. Georgia that capital punishment was unconstitutional. Furman officially created a hiatus on state executions and forced states to commute death row inmates to life imprisonment. However, the case was far from settled—with a 5-4 decision, the Court largely evaded whether capital punishment was inherently unethical in all cases, instead focusing on its unequal application.
Only four years later, in 1976, the Court declared in Gregg v. Georgia that the death penalty did not inherently violate the Eighth Amendment and thus was not unconstitutional so long as juries had more guided discretion and state legislatures established more procedural safeguards against arbitrary application. All five cases consolidated into Gregg also came out of southern states with high execution rates: Georgia, Louisiana, North Carolina, Florida, and Texas.
The Supreme Court’s reversal of Furman made it even more difficult for defense attorneys to mount successful appeals based on racial prejudice and discrimination. In theory, Gregg implemented guidelines that would ensure that juries applied capital sentences with discretion. In reality, courts increasingly resorted to rigid proceduralism—which often appeared color-blind—and judicial restraint. Although the LDF had drawn attention to the death penalty’s racially discriminatory history, based primarily on statistical evidence, the Furman majority had not based its decision primarily on race. This left the door open for states like Texas to rewrite their laws to appear “race-neutral” and color-blind. After over a decade-long moratorium, executions resumed in 1977.
After the Supreme Court restored the death penalty as constitutionally acceptable, the shift toward “color-blindness” became even more entrenched in the legal system. In many capital cases, race appeared to be an irrelevant factor in the appeals process; attorneys focused once again on procedural violations, along with Eighth and Fourteenth Amendment claims, rather than making discrimination claims, as they did much more often prior to Furman.
Then-Virginia Governor Northam said at the signing of HB 2263 that the death penalty “has no place in this Commonwealth or this country.” That isn’t exactly true. For many generations, capital punishment held an unshakeable place in both Virginia and the nation. Attorneys, judges, juries, legislators, and the people on death row continue to wrestle with the legacies of injustice wrought from what is supposed to be a just system. The history of capital punishment reveals that there’s only so far reform can go to redress structural racism and discrimination.
Recall the words of Virginia’s Supreme Court justices in the Martinsville Seven case—that accepting statistical evidence of systemic racism would effectively terminate capital punishment under the Equal Protection Clause. Their concerns ultimately became reality when the Virginia legislature acknowledged the links between capital punishment and racial violence. In Virginia, at least, this honest appraisal of history overturned the death penalty. It just took seven decades to get there.
