In March of 2021, Virginia’s Democratic Gov. Ralph Northam signed a Democratic-sponsored legislative bill into law that repealed the state’s death penalty—the 23rd such state to take such action.
Many of the lawmakers who voted for the anti-death penalty legislation agreed with the sentiments expressed by Democratic Delegate Jay Jones before Virginia’s House of Delegates: “The death penalty is the direct descendant of lynching. It is state-sponsored racism…”
21 current and former Virginia Democratic and Republican prosecutors supported the repeal of the state’s death sentence. The prosecutors cited four primary reasons:
- The high cost of the death penalty;
- The arbitrary application of the death penalty;
- The risk of wrongful convictions; and
- The lack of deterrent effect.
In a letter to lawmakers, the prosecutors said, “Whether the death penalty is ‘right’ or ‘wrong,’ we all conclude that there is a more cost-effective way to respond to the most heinous crimes: a sentence of life in prison without the possibility of parole. Life without parole sentences help preserve our limited resources, give more finality to victim families, and leave the opportunity to free the wrongfully convicted. Most importantly, a life without parole sentence ensures that the most dangerous criminals never threaten the public again and that they will die in prison without any fanfare or publicity.”
Wrongfully convicted individuals given death sentences are no minor social concern. Just last year (Feb. 2021), the Death Penalty Information Center (DPIC) added 11 “previously unrecorded death row exonerations, bringing the total number of people exonerated after being wrongfully convicted and sentenced to death to 185.”
Misconduct and Racial Bias
There are disturbing facts buried in those numbers. The DPIC outlined those facts:
“Analysis of the 185 innocence cases reveals disturbing problems of official misconduct and racial bias. Nearly 70% of the exonerations involved misconduct by police, prosecutors, or other government officials. 80% percent of capital convictions involved some combination of misconduct or perjury/false accusation, and more than half involved both. Cases that involved misconduct took longer, on average, to reach exonerations. Misconduct was implicated in all 8 of the exonerations that took more than 30 years and 88% of the exonerations that took 21 to 30 years. Misconduct occurred more often in cases involving Black exonerees (78.8%) than white exonerees (58.2%). Black exonerees spent an average of 4.3 more years waiting for exoneration than white exonerees.”
Those “disturbing problems,” as the DPIC put it, reflect precisely why Virginia House Delegate Jay Jones said the death penalty is a “direct descendant of lynching.”
Reform Prosecutors, Conviction Integrity Units
Beginning in 2002, “reform” prosecutors began establishing what are known as “Conviction Integrity Units” (CIUs) designed to prevent and remedy wrongful convictions in their offices.
According to the National Registry of Exonerations (NRE), 41 CIUs have identified and worked to remedy wrongful convictions, while another 52 CIUs have not identified a single wrongful conviction in their jurisdiction.
The NRE reports that since 1989, there have been 2,991 exonerations in the U.S. as of February 2022. It is estimated that anywhere from 2% to 10% of the more than two million persons incarcerated in U.S. prisons are innocent, while four out of every 100 people on death rows are innocent.
It has not been an easy task for prosecutors to push reforms. The relationship between prosecutors and police—usually considered allies in the so-called “wars on crime”—has been fractured in many communities across the country. Powerful police unions have called “reform” prosecutors “soft on crime” for undertaking actions and endorsing policies designed to improve the quality and effectiveness of the nation’s criminal justice system.
Politics Halts Needed Reform
The hue and cry, the partisan demands, and political threats of the police unions against prosecutors have attracted the attention of law-and-order Republican lawmakers. Citing “law and order” right-wing politicians, who view these prosecutors (many of whom are Democrats) as “liberal” and “progressives,” claim reforms undermine the police and their power to deal with communities of color in any manner they see fit.
These lawmakers across the country have redrawn political districts, proposed bills that would create Republican-appointed “oversight committees” with the power to remove prosecutors from office, enacted bills that would allow the state to take over cases prosecutors elect not to prosecute, and have instigated and sponsored “recall” efforts against “progressive” prosecutors.
In a 2019 speech to a Fraternal Order of Police conference in New Orleans, former Attorney General William said that reform prosecutors who “style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook and refusing to enforce the law [are] demoralizing to law enforcement and dangerous to public safety.”
Harris County District Attorney Kim Ogg, elected as a “reform” prosecutor, has found herself under criticism of the Harris County Deputies Organization and the Houston Police Officers Union because of her prosecution policies.
Despite vigorous opposition by local law enforcement, including the HPOU pitting a candidate against Ogg in the 2020 election, the district attorney managed to win a second term in office. Ironically, Ogg is hardly the progressive reformer and has faced pitched opposition from the reform wing of her party as well.
Nonetheless, the Ogg scenario is playing out in elections and legislative battles across the country. Criminal justice reform has become the latest dog whistle for Republican candidates salivating to demonstrate their law and order street cred. Corrupt prosecutors, dirty cops, and law-and-order politicians are determined to fight all reform efforts intended to make the nation’s criminal justice system fair, racially unbiased, and subject to the rule of law.
Our nation’s criminal justice system has been tarnished by centuries of systemic racism. Fundamental reforms will help the system regain some respect among the communities they serve, lessen the occurrence of abuse and wrongful convictions, and turn back the “us against them mentality that infests our police departments. We applaud the prosecutors who have undertaken these reform efforts.