DPIC 2021 Year End Report: Virginia’s Historic Abolition Highlights Continuing Decline of Death Penalty

Virginia’s his­toric abo­li­tion of the death penal­ty high­light­ed a year in which sup­port for cap­i­tal pun­ish­ment con­tin­ued to erode, accord­ing to the 2021 Year End Report from the Death Penalty Information Center. Executions, death sen­tences, and pub­lic sup­port for cap­i­tal pun­ish­ment were all at or near his­toric lows in 2021, the report said, while the exe­cu­tions and new death sen­tences that did take place exposed deep flaws in the admin­is­tra­tion of the nation’s cap­i­tal punishment system. 

Virginia, which had car­ried out more exe­cu­tions since colo­nial times than any oth­er state in the coun­try, became the first Southern state to end the prac­tice. Abolition efforts explic­it­ly linked the death penal­ty to the state’s his­to­ry of slav­ery, lynch­ings, and Jim Crow seg­re­ga­tion. The repeal made Virginia the 23^rd state to leg­isla­tive­ly or judi­cial­ly abol­ish the death penal­ty, and the 11^th to do so this cen­tu­ry. Twenty-six states now have abol­ished the death penal­ty or imposed guber­na­to­r­i­al mora­to­ria on exe­cu­tions and 34 have abol­ished cap­i­tal pun­ish­ment or not car­ried out an exe­cu­tion in more than a decade.

“The death penal­ty grew increas­ing­ly geo­graph­i­cal­ly iso­lat­ed in 2021,” said Robert Dunham, DPIC’s Executive Director. ​“Virginia’s repeal cre­at­ed a death-penal­ty-free zone along the U.S. Atlantic coast that now runs from the Canadian bor­der of Maine to the north­ern bor­der of the Carolinas. In the west, an exe­cu­tion-free zone spans the Pacific coast from Alaska to Mexico. The hand­ful of states that con­tin­ue to push for cap­i­tal pun­ish­ment are out­liers that often dis­re­gard due process, botch exe­cu­tions, and dwell in the shad­ows of long his­to­ries of racism and a biased crim­i­nal legal system.” 

Only five states and the fed­er­al gov­ern­ment car­ried out exe­cu­tions in 2021, and the 11 that were con­duct­ed were the fewest since 1988. The 18 death sen­tences imposed as of December 16 matched 2020’s record low. Just three states — Texas, Oklahoma, and Alabama — account­ed for a major­i­ty of both exe­cu­tions and new death sen­tences in 2021, and just five coun­ties — Harris, Dallas, Tarrant, and Bexar in Texas, and Oklahoma County in Oklahoma — now account for 20% of all exe­cu­tions in the United States in the past fifty years.

The few exe­cu­tions that were con­duct­ed went for­ward with appar­ent dis­re­gard for due process, judi­cial review of exe­cu­tion meth­ods, or poten­tial­ly mer­i­to­ri­ous claims of intel­lec­tu­al dis­abil­i­ty, incom­pe­tence to be exe­cut­ed, and inno­cence. Ten of the eleven peo­ple exe­cut­ed had one or more sig­nif­i­cant men­tal impair­ments (seri­ous men­tal ill­ness, brain dam­age or IQ in the intel­lec­tu­al­ly dis­abled range, and/​or chron­ic trau­ma). One exe­cu­tion was botched, anoth­er was car­ried out with­out media wit­ness­es present, and three peo­ple who met the clin­i­cal def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty and so were con­sti­tu­tion­al­ly inel­i­gi­ble for the death penal­ty were exe­cut­ed with­out any diag­nos­ti­cal­ly appro­pri­ate judi­cial review of their claims. The year’s new death sen­tences were also bad­ly flawed, with more than a quar­ter (27.8%) imposed either by non-unan­i­mous juries or by judges after defen­dants waived jury sen­tenc­ing or in states that denied defen­dants the right to a sentencing jury.

The Trump admin­is­tra­tion con­clud­ed its exe­cu­tion spree, car­ry­ing out three exe­cu­tions in the ten days before the inau­gu­ra­tion of President Biden. The thir­teen exe­cu­tions per­formed in a six-month peri­od from July 2020 to January 2021 were his­tor­i­cal­ly anom­alous in numer­ous ways, includ­ing the most exe­cu­tions ever car­ried out dur­ing a pres­i­den­tial tran­si­tion peri­od. In June, Attorney General Merrick Garland announced a for­mal pause on all fed­er­al exe­cu­tions while the Department of Justice under­took a review of changes in exec­u­tive branch death-penal­ty poli­cies imple­ment­ed under the Trump Department of Justice.

Two more inno­cent peo­ple were exon­er­at­ed from death row in 2021. A DPIC study uncov­ered 11 addi­tion­al exon­er­a­tions, bring­ing the total num­ber of death-row exon­er­a­tions to 186. One per­son has been exon­er­at­ed from death row for every 8.3 exe­cu­tions. Several pris­on­ers with strong inno­cence claims also made news in 2021. Julius Jones came with­in four hours of exe­cu­tion in Oklahoma before Governor Kevin Stitt grant­ed clemen­cy, reduc­ing his sen­tence to life with­out parole. Pervis Payne was removed from death row in Tennessee as a result of his intel­lec­tu­al dis­abil­i­ty, and con­tin­ues to pur­sue fur­ther review of his inno­cence claims. In Texas, a hear­ing was held in the case of Rodney Reed. Bastrop County District Court Judge J.D. Langley issued rec­om­men­da­tions and find­ings of fact that cred­it­ed every pros­e­cu­tion wit­ness over every wit­ness pre­sent­ed by Reed’s defense coun­sel, con­clud­ing that Reed’s con­vic­tion should be upheld.

Public opin­ion polls and an his­tor­i­cal index of polling on cap­i­tal pun­ish­ment found that sup­port for the death penal­ty in the United States was the low­est it has been in a half-cen­tu­ry. An index of near­ly 600 death-penal­ty pub­lic opin­ion sur­veys con­duct­ed over the course of 75 years indi­cat­ed that pub­lic sup­port for cap­i­tal pun­ish­ment has steadi­ly declined since the 1990s and was low­er in 2021 than at any time since 1966. The 2021 Gallup poll mea­sured pub­lic sup­port for the death penal­ty at a half-cen­tu­ry low, with 54% of respon­dents to the organization’s annu­al crime sur­vey say­ing that they were ​“in favor of the death penal­ty for a per­son con­vict­ed of murder.”