Disrupting Death: How Dedicated Capital Defenders Broke Virginia's Machinery of Death

Abstract

Virginia’s repeal of capital punishment in 2021 is arguably the most momentous abolitionist event since 1972, when the Supreme Court invalidated capital punishment statutes nationwide. In part, this is because Virginia’s repeal marks the first time a Southern state abolished the death penalty. And in part, it is because even among Southern states, Virginia was exceptional in its fealty to capital punishment. Virginia had the broadest death penalty statute in the country, coupled with a post-conviction review process that was lightning fast and turned death sentences into executions at a rate five times the national average. Virginia holds the record for the most executions in the history of the United States, so how did it go from all-in on the death penalty to abolition? A critical piece of the puzzle was the fact that Virginia had not seen a new death sentence in ten years, and had only two people left on death row. The death penalty was dying on the vine, and how that came to be owes largely to Virginia’s dedicated capital defenders, who literally worked themselves out of a job by disrupting the machinery of death at every turn. In this Article, we (a law professor and a former regional capital defender) tell the story behind the story of Virginia’s plunging death sentences—what was happening in the trenches that the transcripts and plea deals don’t show. This is the backstory as we know it, and we share it here both to better understand Virginia’s journey, and to serve as a resource for others still navigating theirs.

Keywords: death penalty, capital punishment