Abstract:

The American death penalty is disappearing. Executions have reached the lowest levels seen in
decades. Public support for the death penalty has declined. More states have abolished the death penalty or imposed de facto moratoria. Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline. Take Virginia, which has the highest rate of executions of any death penalty state, and which has executed the second highest number of prisoners since the 1970s. How times have changed. There are now two or fewer trials a year in Virginia at which a judge or jury even considers imposing the death penalty. Still more surprising, over one half of those trials in Virginia now result in a life sentence (11 of 21 cases from 2005 to present at which there was a capital sentencing hearing resulted in a life sentence). Why is this happening and in Virginia of all places? In this study of the decline in the Virginia death penalty, I examine every capital trial since 2005, a group of 21 trials, and I compare those to a group of twenty capital trials from 1996 to 2004. The changed understanding of what it takes to effectively litigate whether a person deserves death, together with improved resources for capital defenders, may help to explain what has happened over the past decade. Whether Virginia will be a bellwether for the American death penalty is hard to say; I conclude by examining additional evidence from North Carolina and Florida highlighting the role adequate counsel may play in the future of the American death penalty.