[Editor’s note: The chasm between the policies pursued by legislative leaders in North Carolina and Virginia continues to grow. The following stories by reporter Ned Oliver of the Virginia Mercury highlight that divergence on two high-profile issues involving racial inequities in the criminal justice system.]
Before lawmakers abolished the death penalty, expert public defenders had quietly defeated it themselves
Gov. Ralph Northam signed legislation ending the death penalty in Virginia this week, an outcome that even some of the most ardent abolitionists once doubted they would see in their lifetime.
Behind the scenes, a reform that drew little notice when it came before the legislature almost two decades ago had already made executions a rarity — something lawmakers say helped make this year’s legislative push possible.
The creation of four regional capital defenders offices in 2002 meant low-income people facing a death sentence suddenly had access to an expert team of lawyers. As members of the offices like to put it, they were giving poor people a rich person’s defense.
Only one of their more than 250 clients was ever executed.
“The playing field was leveled, and with a level playing field, the death penalty was going away,” said David Johnson, who directs the Virginia Indigent Defense Commission. “It just changed everything.”
Virginia has executed more people than any other state in the country and, in modern times, was second only to Texas. After the capital defenders office began taking cases, the number of death sentences plummeted. The last was handed down 10 years ago and life sentences are now the default punishment for those found guilty of capital murder, according to state court records.
The office was created by a Republican-controlled General Assembly at a time when capital punishment enjoyed widespread public support. The decision came as the quality of legal representation available to indigent defendants was drawing growing scrutiny nationwide, brought to the forefront by an infamous case out of Texas in which a condemned man’s conviction was reversed because his court-appointed lawyer slept through parts of his trial.
Virginia hadn’t contended with a similarly glaring example of poor representation, though in 1985 it did come within nine days of executing Earl Washington, who was later exonerated. But then-Sen. Ken Stolle, a Republican from Virginia Beach, told the Washington Post at the time that he proposed the bill to avoid any potential mishaps. The article was one of the few mentions of the reform, which flew under the radar of even longtime opponents of the death penalty in the legislature.
In an interview this week, Stolle, now serving as sheriff in Virginia Beach, said that while he opposes the decision to abolish the death penalty without stronger sentencing laws, he is happy with the impact the capital defenders office had on the criminal justice system. “I think it went a little further than I thought it would,” he said, “but I think a lot of people didn’t realize the problems (with the old system).”
Before the offices were created, indigent defendants facing a capital murder charge were either represented by local public defender offices, which were often overworked and lacked expertise in death penalty cases, or private court-appointed lawyers, who also had limited experience with the cases and had to get the trial judge’s approval for all but the most basic expenditures.
Often, those court-appointed lawyers were reluctant to seek extra time to prepare motions or ask for more funding for outside experts out of concern for upsetting the trial judge, who could decide whether they would be appointed to represent defendants in future cases, said Douglas Ramseur, a criminal defense lawyer who was among the first hires at the capital defenders office in central Virginia and worked there off and on for 18 years.
“It affects you when you know that judge controls the purse strings,” he said. “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.”
He compared the constraints of the old approach to the outcome in a recent case in Louisa County where his client in a capital case took issue with a life-size portrait of Robert E. Lee in the courtroom. Ramseur filed a motion to have it removed before the 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.”
In addition to independence and expertise, the new offices brought more resources, said Johnson, the Virginia Indigent Defense Commission’s director, who oversees the offices.
Each office employed investigators and mitigation specialists, who probed their clients’ backgrounds for information that could be presented in the event of a guilty verdict to help explain the circumstances that led up the crime, for instance childhood trauma or an intellectual disability. “We had cases where we sent mitigation specialists and defense teams to Central America to villages to see where people grew up in horrific conditions,” Johnson said. “We sent people to Eastern Europe to look into their backgrounds.”
With the information they were able to dig up, he said juries were often unwilling to hand down death sentences. In other cases, it never got to that point because once prosecutors learned what the defense team had, they were willing to take death off the table.
Henrico County Commonwealth’s Attorney Shannon Taylor, who supported the death penalty repeal, agreed that investigative resources in particular made an impact. “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,” she said. “When they have more information, it leads to the conclusion the death penalty is not appropriate.”
The anecdotal accounts are backed up by academic reviews. Brandon Garrett, a professor at Duke University School of Law, called the creation of statewide capital defenders the biggest factor in the nationwide decrease, citing a 2019 article he wrote on the subject, which found the establishment of the new offices correlated more strongly to reduced death sentences than other influences, such as a declining homicide rate.
He said the impact was particularly striking in Virginia, where before the office was created, death penalty trials typically lasted just a day or two, with the defense sometimes calling hardly any witnesses. He said that changed after the capital defenders began taking clients, with the defense now bringing the bulk of the experts and witnesses called at sentencing.
“In Virginia, the impact was so clear and dramatic, because prosecutors started to fail to get death sentences when they sought it at trial,” he wrote in an email.
Unlike the creation of the capital defenders office, the death penalty repeal passed this year with almost no Republican support, with GOP lawmakers in the House arguing it should be reserved as an option for the “worst of the worst.” During floor sessions, they rehashed gruesome crimes and held up pictures of crime victims.
Democratic lawmakers countered that the expense of keeping the law on the books — namely the cost of bringing capital defendants to trial and then through a long appeals process — and the possibility of a wrongfully convicted person being executed outweighed any arguments in favor of the punishment, especially when it’s not being used.
At Wednesday’s signing ceremony, Northam stood outside the state prison that houses the death chamber with the bill’s patrons, Del. Mike Mullin and Sen. Scott Surovell, and advocates who have for years pushed for the penalty’s elimination. “It’s the moral thing to do,” Northam said.
Supporters of the step say there’s plenty of credit to pass around, citing activists who have worked on the issue for decades, a political shift in Virginia that gave Democrats unified control of state government for the first time in two decades, and Northam’s endorsement and work behind the scenes to bring along reluctant members of his party.
But Surovell said the work of the capital defenders also played a big role in bringing along some of his more reluctant colleagues, a sentiment shared by other lawmakers at the event.
“I don’t think there’s any question that the lack of people on death row and the lack of sentences in the last 10 years helped legislators feel that this punishment was out of step with where Virginians are today,” he said.
The capital defenders office will close in the coming months as they wrap up their cases, in which prosecutors have all already agreed not to seek the death penalty. The roughly $3 million in funding that paid for the offices is being shifted to cover the cost of opening a new public defender office in Chesterfield, which is one of the largest localities in the state without an office dedicated to indigent defense. The budget is also being increased to help fund additional defense resources at the appellate level as lawmakers prepare to expand the jurisdiction of the Virginia Court of Appeals.
“These incredibly dedicated people worked themselves out of a job, which is remarkable,” Johnson said. “And they knew it would happen some day.”
Ned Oliver is a reporter for the Virginia Mercury, which first published these reports.