STUDIES: Explaining Virginia’s Disappearing Death Penalty

A new study by University of Virginia law pro­fes­sor Brandon Garrett (pic­tured) shows a dra­mat­ic decline in the death penal­ty in Virginia over the last decade. Virginia has car­ried out the third high­est num­ber of exe­cu­tions since the 1970s and his­tor­i­cal­ly has exe­cut­ed a high­er per­cent­age of its death-row pris­on­ers than any oth­er state. However, Garrett said there are now few­er than two cap­i­tal sen­tenc­ing tri­als per year and Virginia juries have not imposed any new death sen­tences since 2011. 

Reviewing Virginia cap­i­tal pro­ceed­ings from 2005 to 2014, Garrett found that “[a]lmost all cap­i­tal cas­es are now plea bar­gained,” with only 21 pro­ceed­ing to a cap­i­tal sen­tenc­ing hear­ing. Juries imposed life sen­tences in more than half of those cas­es. Garrett found trou­bling trends in the evi­dence used in cap­i­tal cas­es, which relied fre­quent­ly on forms of evi­dence that have been found to be unre­li­able or sus­cep­ti­ble to abuse, such as unrecord­ed con­fes­sions to police, infor­mant testit­mo­ny, or eye­wit­ness iden­ti­fi­ca­tions. He also found sig­nif­i­cant geo­graph­ic dis­par­i­ties in death penalty verdicts. 

“The ​‘new’ Virginia death penal­ty is almost nev­er imposed and when it is, a death sen­tence is so freak­ish that it rais­es the con­sti­tu­tion­al con­cerns with arbi­trari­ness under the Eighth Amendment that U.S. Supreme Court jus­tices have long expressed,” Garrett said. ​“Virginia may be a bell­wether for the future of the American death penal­ty.” The study also com­pared sen­tenc­ing pro­ceed­ings in the past decade with 20 cap­i­tal tri­als from 1996 to 2004 to try to explain the drop in death sen­tences. Garrett con­clud­ed that improved rep­re­sen­ta­tion — both lead­ing to pleas and in per­for­mance at tri­al — was the pri­ma­ry fac­tor in the decline. 

Virginia estab­lished region­al cap­i­tal defense resource cen­ters in 2004, giv­ing cap­i­tal defen­dants access to attor­neys and inves­ti­ga­tors who spe­cial­ize in death penal­ty rep­re­sen­ta­tion. Thereafter, the aver­age length of the sen­tenc­ing phase dou­bled from 2 days of cur­so­ry rep­re­sen­ta­tion pri­or to 2005 to 4 days after 2005, with triple the aver­age num­ber of defense wit­ness­es pre­sent­ed and increased use of expert wit­ness­es. The aver­age num­ber of pros­e­cu­tion wit­ness­es was unchanged. ​“The impact of improved lawyer­ing is strik­ing,” Garrett said, and sug­gests the need for rep­re­sen­ta­tion by ​“a team of spe­cial­ist cap­i­tal defense lawyers and inves­ti­ga­tors … that understand[s] the very dif­fer­ent way that a death penal­ty case must be lit­i­gat­ed from its inception.”