How Capital Defenders Helped End Virginia’s Death Penalty

Virginia​’s cap­i­tal defend­ers have ​“worked them­selves out of a job,” accord­ing to David Johnson, exec­u­tive direc­tor of the Virginia Indigent Defense Commission. The commonwealth’s four cap­i­tal defense offices, which opened in 2002, are cred­it­ed with bring­ing about a dra­mat­ic decline in death sen­tences. That decline was a major fac­tor in Virginia becom­ing the first south­ern state to abol­ish the death penalty. 

“The play­ing field was lev­eled, and with a lev­el play­ing field, the death penal­ty was going away,” Johnson said. ​“It just changed every­thing.” While the effect of high-qual­i­ty rep­re­sen­ta­tion in cap­i­tal tri­als has long been known anec­do­tal­ly, recent research has pro­vid­ed the data to sup­port that understanding. 

A 2019 arti­cle by Duke Law Professor Brandon Garrett found that the pro­vi­sion of cap­i­tal tri­al rep­re­sen­ta­tion was more close­ly cor­re­lat­ed with a decline in death sen­tences than oth­er fac­tors, includ­ing state adop­tion of life with­out parole sen­tenc­ing, changes in homi­cide rates, or the require­ment that sen­tenc­ing deci­sions be made by a jury, rather than a judge. ​“In Virginia, the impact was so clear and dra­mat­ic, because pros­e­cu­tors start­ed to fail to get death sen­tences when they sought [the death penal­ty] at tri­al,” Garrett said.

Institutional cap­i­tal defense units have had sig­nif­i­cant impacts on the out­comes of cap­i­tal tri­als and appeals. When New York reen­act­ed the death penal­ty in the mid-1990s, the leg­is­la­ture cre­at­ed a statewide cap­i­tal defend­er office to pro­vide rep­re­sen­ta­tion in those cas­es. Very few death sen­tences were imposed and all were reversed on appeal. After the state courts struck down New York’s death-penal­ty statute in 2004 and applied its deci­sion to the three pris­on­ers then on death row, the leg­is­la­ture declined to amend the law, abol­ish­ing the death penal­ty in the state.

More than 200 defen­dants have been sen­tenced to death in Philadelphia, Pennsylvania, which, in 2001, had more African Americans on death row than any oth­er U.S. coun­ty. In 1993, the Defender Association of Philadelphia was per­mit­ted for the first time to pro­vide rep­re­sen­ta­tion in mur­der tri­als, being assigned 20% of the city’s homi­cide cas­es. Since then, 90 cap­i­tal defen­dants have been sen­tenced to death. None of them were Defender Association clients.

Steep declines in death sen­tences also fol­lowed the cre­ation of state or region­al cap­i­tal defense orga­ni­za­tions in states includ­ing Georgia, North Carolina, and Texas.

When the Virginia leg­is­la­ture cre­at­ed the cap­i­tal defend­er offices, the bill was spon­sored by a Republican sen­a­tor, Ken Stolle. ​“I think it went a lit­tle fur­ther than I thought it would,” said Stolle, who now serves as sher­iff of Virginia Beach, ​“but I think a lot of peo­ple didn’t real­ize the prob­lems (with the old sys­tem).” Although Stolle expressed dis­agree­ment with the deci­sion to abol­ish the death penal­ty, he said he is glad the defense offices had the impact they did. 

Douglas Ramseur, the Chief Capital Defender in the Central Virginia region­al office cred­its sta­ble fund­ing and insti­tu­tion­al inde­pen­dence for the suc­cess of Virginia’s cap­i­tal defend­er offices. Prior to their cre­ation in 2002, he said, indi­gent cap­i­tal defen­dants were rep­re­sent­ed either by under-resourced local pub­lic defend­ers or by court-appoint­ed attor­neys who depend­ed on judges for their appoint­ment and for bud­getary approvals in cas­es. ​“It affects you when you know that judge con­trols the purse strings,” Ramseur explained. ​“If you were putting up a fight that a judge didn’t think was the right fight or you were tak­ing longer than the judge want­ed it to, maybe you wouldn’t be appoint­ed in the next case.” 

By con­trast, Ramseur was able to file a motion to remove a por­trait of Robert E. Lee from a court­room before a Black defendant’s cap­i­tal tri­al. ​“I came in defend­ing my African-American client who said, ​‘I don’t think that’s appro­pri­ate in this court­room,’” he said. ​“That’s some­thing that would have been much hard­er for a local lawyer serv­ing at the plea­sure of the judge to do.”

Even pros­e­cu­tors agreed that pro­vid­ing cap­i­tal defen­dants with robust rep­re­sen­ta­tion made a dif­fer­ence. Henrico County Commonwealth’s Attorney Shannon Taylor, who sup­port­ed the death penal­ty repeal, said, ​“Their abil­i­ty to dig deep into indi­vid­u­als being charged, be it under­ly­ing men­tal health issues or oth­er mit­i­gat­ing fac­tors, meant the com­mu­ni­ty — the jurors lis­ten­ing — have more infor­ma­tion to con­sid­er. When they have more infor­ma­tion, it leads to the con­clu­sion the death penal­ty is not appropriate.”

With the death penal­ty abol­ished in Virginia, the cap­i­tal defend­er offices are expect­ed to close in the next few months. The $3.9 mil­lion bud­get is expect­ed to shift to a new pub­lic defend­er office open­ing in Chesterfield, and to pro­vide addi­tion­al appel­late defense resources as the leg­is­la­ture also expand­ed the juris­dic­tion of the Virginia Court of Appeals.