On March 24, 2021, Gov. Ralph Northam, D-Va., ended a 400-year run of the death penalty in Virginia, making it the first southern state to abolish the death penalty. Northam notably stated “there is no place today for the death penalty in this commonwealth, in the South, or in this nation” as he signed the proposed legislation into law.
Meanwhile, by mid-March in South Carolina, the state legislature was already in the throes of extensive legislative debates on “S. 200,” a bill that originated in the South Carolina Senate and promised an end to the state’s unintentional 10-year lull in executions.
Virginia’s decision to ban capital punishment not only carries incredible significance for the future of criminal justice in the commonwealth, but in the South as a whole. While Virginia may be the 23rd state to abolish the death penalty nationwide, it is the first southern state to do so. As the former capital of the Confederacy, the state’s move is a big one, and activists and advocates against capital punishment now opine what will happen to the institution in the South. On one hand, Virginia’s abolition of capital punishment seems to point clearly to one answer. However, recent developments in South Carolina indicate that maybe the future is not so clear.
Virginia has a long and notorious history of utilizing capital punishment. In the 400 years since Virginia’s founding, the Commonwealth has executed more people than any other state, with a total of 1,400 people executed. English colonists even carried out the first execution in modern-day Virginia in 1608.
Virginia is also a former Confederate state and was home to the capital of the Confederacy during the Civil War. This is important to note, seeing that the death penalty is directly connected to the racial lynchings that resulted from the Confederacy’s loss of the Civil War and the Confederate states’ perceived need to maintain white supremacy. Even preceding the Civil War, southern slave owners often sought more “torturous” forms of punishment, including capital punishment, for their slaves, in order to establish and maintain dominance over them. After the war, public lynchings became more common across the South as frightened former slave owners feared retaliation from the newly-freed slave population and sought to assert dominance once more. Racial terrorism ran rampant. The death penalty was adopted as a “more palatable form of violence.”
The connection between the death penalty and lynchings is quite striking. According to the Equal Justice Initiative’s article, “Virginia Abolishes the Death Penalty,” more than 80% of racial lynchings between the years 1889 and 1918 took place in the South. Additionally, over 80% of executions since 1976, the year the Supreme Court reinstated the death penalty in the landmark case Gregg v. Georgia, have also occurred in the South. The data from EJI’s article shows the places in the South that had more lynchings post-Civil War also impose the death penalty more today. Illegal lynchings declined as legal executions became more and more common in the early 20th century. In fighting in favor of the death penalty abolition bill in Virginia, state Sen. Mamie Locke, D-Portsmouth, said, “It is not lost on anyone that those states that had a high number of lynchings correlate with their support of the death penalty.” Unsurprisingly, and as Carol and Jordan Steiker note, “the current map of active death penalty states is predominantly a map of the former Confederacy.” Not a single former Confederate state has abolished the death penalty—until now.
This extensive history and deeply rooted connection to the death penalty is no doubt why we still see the death penalty utilized so heavily, and almost exclusively, in the South today. According to the Death Penalty Information Center, in 2020, out of only seven inmates executed at the state level, six were executed in southern states. In 2019, we see a similar phenomenon – out of twenty-two inmates executed at the state level, 20 were executed in the South.
However, as Virginia becomes the first southern state to abolish the death penalty, other southern states seem to be moving in the opposite direction. On May 14, Gov. Henry McMaster, R-S.C., signed into law a bill allowing South Carolina to resume executions after 10 years. According to the state’s old law, an inmate could choose to be executed by lethal injection or by electrocution. If an inmate elected not to choose, he would be executed by lethal injection because lethal injection was the default method. In this way, if a death row inmate either chose lethal injection or did not choose a method at all, then he could not be forced to be executed by electrocution. Supporters of the new law, including one of the bill’s sponsors, state Sen. Greg Hembree, R-North Myrtle Beach, claimed this has created a loophole through which death row inmates could evade–potentially indefinitely–their lawfully imposed death sentences by choosing a method of execution they knew was unavailable. South Carolina is one of the many states that has had trouble obtaining lethal injection drugs in recent years, as many of the drug companies that once manufactured them have stopped doing so in response to potential litigation problems and public contempt. As a consequence, South Carolina has not been able to execute anyone since 2011. This law would allow the state to work around this loophole. According to the new law, an inmate may still choose how he is killed, however a firing squad will be added as a third option and the default method of execution will become electrocution. Therefore, if a death row inmate chooses lethal injection and lethal injection drugs are unavailable, or if an inmate elects not to choose, then the inmate can now be sent to the electric chair.
Opponents of the law criticized it for two major reasons. First, “for the first time since Gallup began asking the question in 1985,” a majority of Americans today prefer life sentences over the death penalty. In 2014, when asked whether they preferred the death penalty or life imprisonment without the possibility of parole for a sentence of murder, 50% of Americans said they preferred the death penalty. When Gallup asked the same question in 2019, that number dropped 14 percentage points, to only 36%. In addition, experts note that the majority of Americans view methods of execution such as electrocution as “far crueler than lethal injection.” To many, South Carolina’s new law is seen as a major step backwards. However, general public support for the death penalty remains relatively high as 60% of Americans approve its use. Second, opponents to the South Carolina legislation note the vast racial disparities that persist in capital sentencing, pointing out the death penalty is disproportionately sought in cases involving Black defendants. In a nation that is slowly but surely moving away from the death penalty across the board, especially its more primitive methods, and realizes that the death penalty disproportionately impacts Blacks, why move to revive executions now?
There is no way to know for certain what will happen to the death penalty in the South. Perhaps Virginia’s decision to abolish the death penalty will convince other southern states it is a dying institution that should be abandoned. In fact, several South Carolina state legislators argued just that. Several legislators who condemned S. 200, such as state Rep. Justin Bamberg, D-Bamberg, pointed to Virginia, contending its decision to abolish the death penalty only months before was yet another reason to vote against S. 200. However, the bill still passed by an overwhelming majority.
Nevertheless, Brandon Garrett, professor of law at Duke University School of Law and author of End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, pointed out that “a heartland death penalty state” like Virginia having made this move signals “the slow death of the American death penalty.” Fight as they may, states like South Carolina may soon find themselves unable to keep the death penalty alive at the state level.