New Scholarship: A Review of Virginia’s Death-Penalty Experience Exposes the Myth that the Death Penalty is Reserved for ​‘the Worst of the Worst’ Cases

The death penal­ty is reserved for “’the worst of the worst’ — or at least that is what we are told,” writes University of Richmond law pro­fes­sor Corrina Barrett Lain (pic­tured) in a Washington & Lee Law Review post-mortem on Virginia​’s use of cap­i­tal pun­ish­ment. Although the ​“worst of the worst” is a core com­mand of a con­sti­tu­tion­al­ly com­pli­ant death penal­ty, ​“the death penal­ty doesn’t just exist in the abstract,” Lain notes. And when she takes the oppor­tu­ni­ty ​“to set the record straight about who we exe­cute gen­er­al­ly, and what this has looked like in Virginia,” Lain finds that the clos­est cap­i­tal pun­ish­ment has come to the worst of the worst is how ​“we as a soci­ety exe­cute gen­er­al­ly, and how this has played out Virginia-style.”

In Virginia, and across the U.S. as a whole, Lain observes, there are three prin­ci­pal cat­e­gories of peo­ple who are actu­al­ly exe­cut­ed: those who are severe­ly men­tal­ly ill, who have them­selves expe­ri­enced sig­nif­i­cant trau­ma, and those with the bad luck of hav­ing been pro­vid­ed sub­stan­dard rep­re­sen­ta­tion, been charged with a crime in an out­lier coun­ty with a cap­i­tal-pun­ish­ment-hap­py pros­e­cu­tor, or being Black and hav­ing a white vic­tim. These offend­ers, Lain says, are not actu­al­ly the ​“worst of the worst.” And if you ​“take these cat­e­gories away,” Lain argues, what’s left of ​“the death penal­ty is an empty shell.”

Lain’s first cat­e­go­ry of defen­dants who are exe­cut­ed in the U.S. are defen­dants who are severe­ly men­tal­ly ill ­— which she clas­si­fies as ​“peo­ple who have been diag­nosed with a severe men­tal ill­ness as list­ed in the DSM‑5,” the lat­est edi­tion of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. Lain points to a study of exe­cu­tions between 2000 and 2015 that ​“found that 43 per­cent of those exe­cut­ed had been diag­nosed with some sort of men­tal ill­ness” and an American Bar Association study that esti­mat­ed one in five cur­rent death-row pris­on­ers have a severe men­tal ill­ness. She then cat­a­logues the data from exe­cu­tion from 2017 through 2020 that show that between one-quar­ter to one-half of the pris­on­ers exe­cut­ed each year had evi­dence of seri­ous mental illness.

Virginia’s 2017 exe­cu­tion of William Morva — the last per­son exe­cut­ed before the com­mon­wealth abol­ished cap­i­tal pun­ish­ment — is a case in point, Lain says. Morva was active­ly psy­chot­ic, and he suf­fered from a delu­sion­al dis­or­der that left him unable to dis­tin­guish his delu­sions from real­i­ty. His lawyers said he suf­fered from ​“a seri­ous psy­chot­ic dis­or­der,” includ­ing believ­ing that ​“local law enforce­ment and the Administration of for­mer President George W. Bush con­spired to harass him, to arrest him unjust­ly, and to incar­cer­ate him in jail con­di­tions that would cause his death.” His, Lain writes, was ​“an embar­rass­ing exe­cu­tion,” mark­ing ​“the last gasp of an embar­rass­ing­ly bro­ken crim­i­nal jus­tice prac­tice” in the state. 

Lain’s sec­ond obser­va­tion is that ​“we exe­cute offend­ers who have them­selves been pro­found­ly vic­tim­ized.” ​“Here again,” she writes, ​“Virginia has been a micro­cosm of the death penalty’s oper­a­tion more gen­er­al­ly.” The evi­dence, Professor Lain states, sug­gests that ​“cap­i­tal mur­der­ers … are not born so much as they are made.” She uses the exam­ple of Ricky Gray, the sec­ond-to-last exe­cu­tion in Virginia, who endured years of pro­longed phys­i­cal and sex­u­al abuse. The sex­u­al abuse began when Gray was just a child and an old­er fam­i­ly mem­ber forced him to per­form oral sodomy. The phys­i­cal abuse from his fam­i­ly mem­bers, par­tic­u­lar­ly his father, was relent­less. A psy­chol­o­gist who eval­u­at­ed Gray on death row said he had ​“nev­er seen a case with such sus­tained and corroborated abuse.” 

Professor Lain’s final obser­va­tion describes the arbi­trary nature of the death penal­ty, as the gov­ern­ment exe­cutes defen­dants with poor rep­re­sen­ta­tion, with a par­tic­u­lar pros­e­cu­tor on the case, or for com­mit­ting ​“Black-on-White” crimes. Lawyering, geog­ra­phy, and race sig­nif­i­cant­ly affect the out­come of a cap­i­tal case. Professor Lain cites a 2000 study by a Virginia leg­isla­tive com­mis­sion that deter­mined that Virginia defen­dants who killed White vic­tims were more like­ly to be charged with cap­i­tal mur­der than those who killed Black victims. 

When these three cat­e­gories of defen­dants are tak­en away, Lain writes, ​“there sim­ply aren’t enough offend­ers to keep the sys­tem going.” When Virginia final­ly pro­vid­ed com­pe­tent rep­re­sen­ta­tion through its region­al cap­i­tal defend­er offices, their work proved the point, she says. No one was sen­tenced to death in the last nine years before Virginia made the his­toric deci­sion to repeal its death penal­ty in March 2021. “[T]he advent of ded­i­cat­ed cap­i­tal defend­ers” killed Virginia’s death penal­ty, Lain says. 

Looking at the death penalty’s demise, Lain says ​“it is only fit­ting to set the record straight …. [W]e were nev­er doing what the death penal­ty was sup­posed to do in the first place. We were nev­er tar­get­ing the worst of the worst. We were exe­cut­ing the severe­ly men­tal­ly ill. We were exe­cut­ing per­pe­tra­tors who had been pro­found­ly vic­tim­ized them­selves. And we were exe­cut­ing based on fac­tors that we would nev­er even try to defend as appro­pri­ate for consideration.” 

These issues with the death penal­ty, Lain con­cludes, are not unique to Virginia and, she writes, it is impor­tant to ​“remem­ber that out­side of Virginia, each of these things is still generally true.”