For decades — centuries, actually — the only real issue in Virginia related to the death penalty was how to expand it, no matter which party was in charge.
That will change in dramatic fashion on Wednesday, when Gov. Ralph Northam (D) puts his signature on a bill abolishing the death penalty in the state that over the past 400 years has been its most prolific proponent.
Abolition advocates say they are stunned by the turnaround. “I’ve been sort of trying to chip away at this for a decade now,” said Sen. Scott A. Surovell (D-Fairfax), who sponsored the Senate version of the bill that is becoming law.
Activist Cindy Cunningham was watching as Surovell’s bill faced its first vote in a Senate committee this year, the same spot where it died before. This time Saslaw and Petersen voted in favor. Cunningham, who has lobbied Saslaw hard on the issue, burst into tears.
“It was very emotional, because we’ve had so many conversations about it,” she said. “It’s been such a long sort of journey with him.”
A complex set of factors came together this year to change the dynamics. Last summer’s reckoning with racial inequity, sparked by the killing of George Floyd in police custody in Minneapolis, altered and intensified the public conversation about criminal justice, several Democrats said.
Northam, facing the last year of his term, considered statistics showing Black Virginians are many times more likely to face the death penalty and decided it was time to act, he said in an interview. Several lawmakers said Northam’s declaration of support for abolishing capital punishment made the issue a priority.
With the governor’s mansion and all 100 seats in the House of Delegates on the ballot this fall, there are no guarantees that Democrats will maintain their grip on power into next year. They had to act now or risk losing the opportunity.
The issue wound up getting some bipartisan support, though that was limited by Democrats’ decision not to include life without the possibility of parole as an alternative. While a pair of Republicans in the House and one in the Senate voted for abolition, GOP leaders generally branded the effort as an egregious example of Democrats being soft on crime.
“It’s definitely a different mind-set for Virginia,” said Del. Jason S. Miyares (R-Virginia Beach), who is seeking his party’s nomination for state attorney general. “In my opinion it is a criminal-first, victim-last mind-set.”
Still, there was a pragmatic element to the death-penalty debate. Virginia seldom hands out capital punishment anymore. Only two prisoners occupy death row, where there used to be a double-digit population. Surovell said part of the reason is the little-known Capital Defenders program.
Approved by the General Assembly in 2002 with overwhelming bipartisan support, the defenders program provides publicly funded lawyers and investigators to represent people who face a possible death penalty.
In the 20 years before the office was up and running, Virginia executed 86 people. In the past 19 years, that total is 26. A jury last sentenced someone to death about a decade ago.
Former state senator Ken Stolle, who sponsored the bill creating the office, is a Republican who now serves as the sheriff of Virginia Beach. He never intended the program to make the death penalty irrelevant, he said in an interview.
But he does think that, if the state can guarantee that the most violent offenders will never be released, there should be no capital punishment.
“I always believed it would go away in our lifetime,” Stolle said, “but I never thought it would be this rapid.”
Thinking has 'evolved'
Many of the Democrats who voted to abolish the death penalty this year have supported it before.
Northam, who says he has always personally opposed capital punishment, cast a vote for the death penalty in 2009 as a member of the state Senate.
That year he was among a handful of Democrats — along with the current state attorney general Mark R. Herring — who supported a bill to expand the death penalty to cover accomplices to murder.
Northam said his thinking about the death penalty has since “evolved.” He said his father — a 96-year-old retired judge — taught him that “the death penalty consumed such an enormous amount of resources and doesn’t really improve public safety.”
Meanwhile, Floyd’s killing “opened a lot of folks’ eyes” about racial inequities, including with the death penalty, Northam said, calling the policy racist and inhumane. He said he had several conversations with Saslaw before this year’s General Assembly session about the need to act.
As majority leader in a closely divided Senate — with 21 Democrats and 18 Republicans — Saslaw was perhaps the single biggest obstacle to the bill’s chances. That chamber remains more conservative and slow to act than the House, where the death-penalty bill was carried by Del. Michael P. Mullin (D-Newport News), a prosecutor for the city of Hampton.
Just after their party won control of the legislature in the 2019 elections, Senate Democrats held a caucus to create a wish list of policy priorities. Surovell asked about abolishing the death penalty — and got a big yawn.
“I want to say five to seven hands went up,” Surovell said.
Since then, activists have worked to increase interest, with special focus on Saslaw and Petersen.
Cunningham — founder of the Virginia Progressive Legislative Alert Network, or VAPLAN — initially thought the solution was finding a more liberal Democrat to unseat Saslaw. Then Saslaw called her up, she said, and they became regular correspondents, with Cunningham emailing him articles about declining public support for the death penalty.
In an interview, Saslaw said one case in particular stuck in his mind: In 2018, a Prince William County jury did not give a death sentence to a man who murdered his wife and a police officer.
He said that made him realize that “the juries aren’t handing these out anymore.” The expense of maintaining the capital punishment system does not make sense if it is no longer used, he said. “That was a chief motivator in this.”
Petersen said he consulted constituents, met with church groups, talked with people around town and listened to his college-age daughters before concluding that public sentiment has shifted away from capital punishment.
“I feel like the state has changed — not just politically but culturally,” he said. “Not overnight — it was a period of years.”
Feeling the shift
Some Republicans felt the shift, too, but said Democrats handled abolition poorly.
Sen. William M. Stanley Jr. (R-Franklin) proclaimed in a January essay in the Roanoke Times that “I am a conservative Republican, and I am against the death penalty.”
There are “moral and legal reasons” to oppose state-sanctioned death, he wrote — but he cautioned that he would support abolition only if the legislation ensured that some killers would never get out of jail.
Democrats resisted, arguing that they wanted judges to have maximum flexibility in sentencing. So Stanley voted against the bill.
Miyares argued that death was necessary as a last-resort penalty for the most heinous of cases, citing a stomach-turning litany of brutal murders. “It has to be available on the book in those very, very, very rare cases that the ultimate crime deserves the ultimate punishment,” he said.
Stolle said such extreme punishment works only if society broadly supports it, and he said he believes public sentiment has changed. “When I was in the Senate, there were more people that wanted to hang people than to let them go,” he said.
But without another way to keep the worst criminals permanently off the streets, he said, ending the ultimate punishment is making the state less safe.
To death-penalty abolitionists who have devoted years to fighting what seemed like an unwinnable battle, this moment is a bittersweet triumph.
“One lesson we learned from other states is that the most dangerous time is the first year or two after a victory,” said Michael Stone, leader of Virginians for Alternatives to the Death Penalty. He will meet with his board next month to discuss disbanding the group, though he said they might give it another year, out of caution.
“My first reaction was, ‘Damn, it’s about time,’ ” said Joseph M. Giarratano, a former death-row inmate who came three days from being executed before then-Gov. L. Douglas Wilder (D) commuted his sentence to life for a murder that many people came to believe he did not commit. “Then, sadly, I began to think about all those who I knew while on the row who had been executed, and that sent me into a bit of a slump, and PTSD began to kick in a bit.”
Giarratano trained as a lawyer in prison, helped exonerate another inmate who was wrongly sentenced to death, and eventually won his own release. He now works as a paralegal for a Richmond law firm.
Todd C. Peppers, a professor at Roanoke College who has written extensively about Virginia death-penalty cases, said he immediately thought of Marie Deans, an advocate for death-row inmates who died at age 70 in 2011.
“When I think up a list of people who the death penalty in Virginia has killed, I think her name should be on the list — she gave everything,” Peppers said. “She talked about wanting to see it abolished in her lifetime. I don’t think she would’ve believed it could happen.”