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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.”

Sources

Corrina Barrett Lain, Three Observations about the Worst of the Worst, Virginia-Style, Washington & Lee Law Review, Volume 77, Issue 2 (pub­lished online May 42021).