Bring Back the Death Penalty in Virginia?
Yesterday saw a small revolution in Virginia politics. For the last few years, the Democrats have controlled both the Governor’s chair and both houses of the state legislature. With that alignment, they repealed the state’s death penalty on an almost (but not quite) straight party line vote. But with yesterday’s election, things have changed. Is there now a way to restore the death penalty?
I would think so.
Republicans now control all three statewide offices (Governor, Lt. Governor, and Attorney General) and, by a narrow margin (51-49), the lower house of the state legislature, called the House of Delegates. The Democrats continue to control the Senate, 21-19, however. As long as they do, a direct death penalty reinstatement bill probably cannot pass. Unmovable partisan ideology is unlikely to allow it.
But something else probably could pass: A bill establishing a binding statewide referendum on whether to reinstate the death penalty statute.
It’s one thing to have one’s own principles (or at least attitudes) against capital punishment. It’s another to take the position that your views should run the show over the will of the people, which should not even be heard. Indeed, I cannot think of a single principled argument against letting Virginians decide this issue for themselves. Twice in the last ten years, Californians have done so, largely at the behest of death penalty opponents. Why shouldn’t Virginians have the same opportunity?
The death penalty is, at the end of the day (and pretty much at the beginning of the day while we’re at it) a moral issue. That is precisely the kind of question where the values of the voters ought most directly to be controlling. But even if it were primarily a different sort of question — for example, whether even if morally justified, it’s worth the cost and delay — why shouldn’t those questions likewise be settled by the people who will have to pay the costs and tolerate the delays?
The hot button issue in the Virginia races was whether school policy and subject matter should be controlled by the “experts” on school boards or by citizens and parents. The Democratic nominee, former Gov. Terry McAuliffe, lost the election (to my and others’ way of thinking) when, astonishingly, he said in a debate that education experts, not parents, should decide what gets taught in schools. Up to then, McAuliffe had been leading. After that, it was all downhill.
There’s a lesson there, one that will resonate with the legislature: On the big questions, let the people decide.
In Virginia, the death penalty hits home. This is not only because Virginia has been stung with the same murder surge that has afflicted the country as a whole. It’s because Virginians were the main targets of the Beltway sniper, whose horrifying escapade of random, for-sport murders still lives in the memories of Commonwealth voters. He was executed. A future Virginia jury should have the same right to direct the execution of the next one.
So the stage is set. Let the new legislature adopt, and the new Governor sign, a bill establishing a binding vote of the people whether to restore capital punishment.
P.S. I’ll be happy to bet $1000 here and now how such a vote would come out. Any takers?
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Does the Virginia Constitution provide for binding referenda, or would the “binding” just be the legislature’s promise to enact what the people endorse?
I would take your bet if I could have the “yes” side, but I doubt you will let me have it.
I must admit I don’t know beans about the Virginia Constitution. I doubt it forbids a binding referendum, but I don’t know that it allows one, either.
I confess you’re right about the bet. I’m hogging the “Yes, let’s bring it back” side. I feel like I’m entitled to be piggy in my old age.
Unfortunately, voters cannot circulate petitions for any question to appear on the ballot statewide. It would have to be up to the legislature, and with the Senate in Democratic control, they wouldn’t allow a reinstatement bill to get a vote. 2023 is a better bet.
While I would ardently back a referendum on the death penalty, the situation is much more complicated. The Republicans (as of this comment) have a 52-48 majority, but 2 Republicans voted for abolition. In the Senate, Majority Leader Saslaw (a supporter of the death penalty) voted for abolition. Some Republican senators also supported abolition. 2023 could be a better predictor for reinstatement prospects.
Thanks for your comment. It’s a somewhat tricky issue, because some of those who voted for abolition could easily think, as a matter of “let the people decide,” that a referendum serves the broader purpose of popular sovereignty and the force of democratic legitimacy. On the other hand, they might not. I think it will depend in part on three things: Whether and how strongly Youngkin backs it; whether murder continues its surge of the last 18 months or so; and whether there is some particularly horrible episode like the Beltway sniper.
Virgina has not had a death sentence in over ten years, you could bring it back but I doubt it would result in any death sentences.
Then bringing it back would be a win-win-win: Your side will see few if any defendants executed; my side will see the Commonwealth reassert its right to use the DP in extreme and horrible cases; and the citizens will see their right honored to make big policy decisions by their own direct vote.
No sentences or no executions? It would, of course, take considerable time to produce any executions. I expect it would produces some sentences, though, if properly drafted. “Proper” means, especially, no single-juror veto. At the penalty phase, the jury needs to be unanimous one way or the other, the same as the guilt phase.
Well, since AG Miyares is a staunch pro, he could reassign cases from anti-death penalty CAs in Fairfax, Loudoun, Richmond City, and Norfolk City.
Kent, I’d say no death sentences. When a jury gives a unanimous life verdict for the killing of a female police officer on her first day on the job in Prince William county with Paul Ebert posecuting the case, I’d say attitudes in Virginia have changed…
If attitudes have changed, then there is no reason to ban capital punishment as a matter of law; it simply won’t be used.
And you might be right that it will be used seldom or never. But the incidence of its use has never been the primary point with me. The most important point is symbolic — that society forthrightly declare that it has the moral authority, in extreme cases, to say NO and mean it. It may choose to exercise that right often or seldom or practically never, but the unapologetic statement of its continued existence to my way of thinking puts a much needed backbone in the basic requirements of civilized life.
P.S. Tuesday’s election might count as evidence that attitudes are changing back.
Attitudes have shifted somewhat nationwide, but that does not mean that another D.C. Sniper would not be sentenced to death. Also, Prince William County is now in the D.C. exurbs and probably not representative of the state.
Another D.C. sniper attack type murder spree would probably bring back the death penalty in Virginia, just as solid proof that an innocent person was executed might end the death penalty in some other place, we tend to be reactive when enacting criminal laws. I don’t know of a place in Virginia that would be representative of the state, as I said before no place in Virginia has had a death sentence in over ten years.
Since Virginia has the single-juror veto rule, the lack of sentences does not tell us too much about what would happen under a properly drafted statute.
Very few capital cases go to trial, and when they do they rarely result in a capital murder conviction. The single juror veto is not the reason for the long term decline of the death penalty in Virginia, plea bargaining did that…
Bill, that horse left the barn, we are not talking about banning capital punishment but rather bringing it back. Pragmatic concers come into play, there was a multi million dollar infrastructure in place because of the death penalty, that money is now being spent elsewhere. Moral authority and symbolism are great concepts, and I follow your reasoning, but the real question becomes do the people want money spent on something that hasn’t been used in 10 years, where a sizeable portion of the population was against it to begin with. P. S. I did not see any mention of the death penalty in any of Virginia”s state wide races.
Steve, “…the real question becomes do the people want money spent on something that hasn’t been used in 10 years, where a sizeable portion of the population was against it to begin with. ”
In the referendum I propose, you and your allies would be free to raise all those points, and raise them to exactly the people who would wind up paying the bill. The ones who would have to pony up are the ones with the right to decide if it’s worth it; all I want is to give them the chance explicitly to exercise that right.
P.S. I did not see the DP mentioned per se either, but I saw plenty of ads right here in Fairfax County about crime, the increase last year in the murder rate, and about (shall we say) an unfortunate parole board decision during McAuliffe’s term. So I can’t say for sure that Virginians mood has changed, but I can say for sure that Youngkin thought it had, and that the best way to find out is to ask them. That’s what a referendum does.