When Virginia abolished the death penalty this week, much of the response focused on what was new: the first Southern state to take this step, the state that has executed more people than any other in American history.
But it’s also worth noting what was not new: the reasoning behind the decision. In a statement on Wednesday, Virginia’s governor, Ralph Northam, said: “Ending the death penalty comes down to one fundamental question, one question: Is it fair? For the state to apply this ultimate, final punishment, the answer needs to be yes. Fair means that it is applied equally to anyone, no matter who they are.”
Because he could not answer that question in the affirmative, Mr. Northam said, he could not support the death penalty’s continued use.
This is the same rationale that justices of the Supreme Court relied on almost 50 years ago, when the court barred the use of the death penalty as it was applied at the time. The ruling in Furman v. Georgia involved death sentences in three separate cases with very different facts.
“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Justice Potter Stewart wrote in a concurring opinion. “The Eighth and 14th Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”
Four years later, in 1976, the court allowed the practice to resume after states updated their sentencing procedures to address the constitutional concerns. But those fixes did not actually solve the problems that continue to plague capital punishment.
For one thing, race has always been a central factor in the imposition of death, no matter how often officials deny it. In a 1987 case, the court considered evidence that those convicted of murdering a white person were more than four times as likely to be sentenced to death as if their victim were Black. The court declined to find that this was sufficient to strike down the practice. More recent research confirms the pattern: Counties with more Black residents, and more white victims, still have more death sentences — what researchers have called a “white lives matter” effect.
Over the past few decades, the court has restricted or barred the use of the death penalty in cases involving juveniles and those with intellectual disabilities. But some states have found creative ways to avoid these rulings and keep on killing.
Then there are the wrongful convictions and even cases of innocence. Since 1973, 185 people have been exonerated of the charges that landed them on death row, most often because of official misconduct. Not everyone is so lucky; at least 18 people have been executed despite serious doubts about their guilt, according to the Death Penalty Information Center, which opposes the practice.
The death penalty has not been shown to deter crime, despite the repeated claim to the contrary by its supporters. “It’s going to make Virginia less safe, less secure,” Jason Miyares, a Republican lawmaker, said of abolition. In fact, states that execute people have consistently higher murder rates than those that do not.
Despite this compelling evidence of the death penalty’s futility, the federal and state governments have put to death more than 1,450 people since the reinstatement of capital punishment in 1976.
The good news is that its overall use has dropped sharply in recent years. New death sentences are down from a high of 315 in 1996 to 18 in 2020. Annual executions have plummeted, too, from 98 in 1999 to 17 in 2020.
More than half of last year’s executions were for federal crimes, the first time in history that the federal government put more people to death than all the states combined. Credit for this dubious achievement goes to former President Donald Trump, who authorized a spate of executions as the election neared, and then three more after he lost to Joe Biden.
Politicians once calculated that backing the death penalty was an effective electoral strategy to show their tough-on-crime bona fides. But that’s less and less true. Americans’ support for the death penalty, which in the past reached as high as 80 percent, has now fallen to 55 percent, its lowest mark in half a century — part of Americans’ growing awareness of the profound failures and inequities of their criminal justice system.
With Virginia’s ban this week, 23 states now prohibit the death penalty, and 11 more haven’t used it in at least a decade. It’s not a simple partisan issue, either. In several states, Republican lawmakers have joined Democrats in voting to ban capital punishment. In Virginia, some Democrats still supported the practice as recently as last year.
What remains for the defenders of state-sponsored killing? Nothing but cruelty. It’s a tried and true tactic, even among certain Supreme Court justices, to linger on the grisliness of the crimes, as if those who oppose capital punishment are somehow unaware of those facts, or are untroubled by them. Horror stories miss the point. No one disputes that the crimes for which people are sentenced to death are abhorrent and demand justice. But a society that sinks to the level of its worst offenders is not only hypocritical, it also poisons itself with an endless cycle of vengeance.
President Biden, who like most Democratic presidential candidates campaigned on ending the death penalty, can help break that cycle by imposing an immediate moratorium on federal executions, and commuting the sentences of the 50 or so inmates on federal death row in Terre Haute, Ind. These inmates account for a small fraction of the more than 2,500 condemned people around the country, but a moratorium would still be an important step toward admitting what the country’s highest court began to acknowledge decades ago: The death penalty is cruel, ineffective and morally repugnant. America needs to join most of the rest of the world and eliminate it.
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