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.