House of Representatives

Earl Washington came within nine days of being put to death by the state of Virginia. The date was set, the arrangements finalized. He would be taken to the death chamber, strapped into an electric chair, then jolted with 2,200 volts that would have paralysed his brain, stopped his heart and cooked his internal organs until his legs blistered and steam rose from his rigid and lifeless body.That was in 1985. Days before the execution Washington, a black man with severe learning difficulties who could barely read or write and had been assessed as having the developmental age of a 10-year-old, had a lucky break. He was contacted by a fellow death row inmate versed in the law who heard his story, sounded the alarm, and had the electrocution delayed.A feature of Washington’s disability was that he would defer to authority figures, readily agreeing to anything they said. In 1983, when he was picked up by police for an alleged burglary and quizzed about four other unsolved local crimes, he confessed to all of them.Three of the four crimes had to be dismissed because his account was so glaringly at odds with the evidence. But the fourth one stuck: the rape and murder of a woman the previous year.Here, too, Washington’s “confession” was profoundly suspect. It was concocted from his “yes” answers to detectives’ leading questions. When his account conflicted with forensic details, they corrected him.He said that his victim was a black woman, to which the interrogating officer replied, “Well that’s wrong, Earl, she was white.” Washington dutifully complied. “Oh, she was white,” he concurred.DNA testing eventually proved that Washington had nothing to do with the murder. In 2001 – 16 years after he came within days of execution – he was set free, an innocent man.Earl Washington is the only death row inmate in Virginia to have officially been exonerated. But the likelihood is that scores of other innocent black men were put to death by the commonwealth in the course of its grizzly 413-year history of capital punishment.This week, Virginia has the chance to make amends for what it did to Washington and to the hundreds of other African Americans it put on death row on the flimsiest of evidence. On Tuesday, the Virginia senate is expected to vote to abolish the death penalty, and by the end of the week the house of delegates is set to follow suit with its companion bill 2263.It would be hard to overstate the significance of this week’s votes. Were Virginia to end its four-century association with capital punishment, it would become the 23rd state in the union to do so.From the first execution in what is now the US, carried out in the Jamestown colony in 1608, until its most recent judicial killing in 2017, Virginia has taken the lives of more prisoners than any other state. Some 1,390 men and women have gone to their deaths.By far the largest racial group of the inmates who have been killed is African American. Which is no coincidence. The most significant aspect of abolition in Virginia, should it go ahead, is that it would be the first southern state from the old Confederacy to wean itself off a habit that was rooted in slavery and racial lynching.“This would be earth-moving,” said Dale Brumfield, a historian of capital punishment who acts as field director for Virginians for Alternatives to the Death Penalty (VADP). “To have killed more people than any other state, and then say we’re not doing this any more – it doesn’t get more remarkable.”Local abolitionists hope that, should the bill pass, Virginia’s example could have a domino effect throughout the south. Former Confederate states still account for 80% of all present-day executions.For LaKeisha Cook, a Baptist minister who has been holding prayer vigils for an end to the death penalty through the Virginia Interfaith Center for Public Policy, repeal would be a fitting culmination to last summer’s Black Lives Matter protests. “This would make a profound statement that Virginia does indeed value black lives,” she said. “That we are acknowledging our ugly history of racism and taking steps to heal.”The abolitionist cause still faces a nail-biting vote in the House, with observers expecting a very slender majority for repeal in the 100-member chamber. Democrats, who took full control in Virginia last year for the first time in a generation, will side overwhelmingly in favor.But fewer than a handful of Republicans are expected to cross the aisle. Their opposition to abolition has stiffened in the wake of Donald Trump’s recent splurge of federal executions in which 13 prisoners were killed in quick succession, including Cory Johnson from Virginia.Despite last-minute jitters, hopes are riding high that the bill will pass. If it does, abolition would all but be assured as Governor Ralph Northam has come out strongly in favor of reform and has vowed to sign it into law, probably in April.“I firmly believe that 2021 will be the year that we eliminate the death penalty in Virginia,” Mike Mullin, the Democratic delegate who introduced House Bill 2263, told the Guardian.Mullin comes from an unusual background for an abolitionist – until he joined the general assembly five years ago, he spent his entire career as a criminal prosecutor. “I’ve handled many murder cases including one death case, and since a very young age I’ve always thought capital punishment amoral,” he said.One of his motivating principles, Mullin said, was that “justice isn’t vengeance”. Innocence also preyed on his mind, with 4% of all capital prosecutions estimated to end in wrongful convictions. “When people are executed you never have the opportunity to go back and take another look.”Arguably the most powerful argument for overturning capital punishment in Virginia relates to its long history of state-sanctioned racial terror. The theme resonates even in the location of the abolition vote at the Virginia state capitol in Richmond – during the civil war the exact same spot served as the capitol of the Confederacy.“Virginia has a very dark past that it has walked for the better part of 400 years,” Mullin said. “We have a lot to make up for from our history, and it’s high time we made a start.”The statistics tell the story. From 1800 to 1920, Virginia executed 625 black and 58 white people.Such an astonishing disparity was not accidental, it was baked into the judicial system. For hundreds of years, the death sentence was a form of punishment reserved almost exclusively for African American males.Under slavery, legislation allowed black Virginians to be put on death row for any offense for which a white man might receive a prison sentence of three years or longer. In 1894, a new law made attempted rape specifically of a white woman by a black man punishable by death.Lawmakers justified the move by saying that unless the commonwealth acted to protect its white women, white men would “take matters into their own hands” and turn to lynching.The 1894 law is clear-cut confirmation that the death penalty in the US was umbilically tied to lynching. In the words of Bryan Stevenson, the leading capital defense lawyer and racial justice campaigner, death row was the “stepson of lynching”.In Virginia, the connection was direct and unashamed. “Rocket dockets” were introduced that allowed black suspects to be arrested, tried and sentenced to death in a matter of hours. “Capital punishment in Virginia, by the way it was applied, was a legalized form of lynching,” Brumfield said.Take the case of Clifton Breckenridge. The 20-year-old black man was arrested in 1909 for the attempted assault of a white girl. That same day a grand jury returned an indictment within 45 minutes, the trial lasted one hour, and the all-white jury deliberated for 12 minutes before sentencing him to death.Breckenridge was executed 31 days later.Winston Green, who like Earl Washington had learning disabilities, was the second person to be killed in the electric chair after its introduction in 1908. He was executed for the crime at age 12 of “scaring a white girl”, whom he did not even touch.Perhaps the most notorious example was that of the Martinsville Seven. In 1951, seven black men were convicted of raping or aiding and abetting the rape of a white woman. The guilty verdicts were achieved with no forensic evidence against the men, who were each forced to make confessions in the absence of a lawyer.Four of the seven were executed in a single day. Then the electric chair was allowed to cool off for a day, before the remaining three were executed.When Brumfield investigated the case of the Martinsville Seven, he found that in the same year three white men had been convicted of raping black women. None of the perpetrators went to prison – one of the white men was found guilty of raping a “feeble-minded” black woman and fined $20.There are many other cases in similar vein, extending even into the modern era. From 1900 to 1969, Virginia put to death 68 men for rape or attempted rape and in all cases the perpetrators were black – no white man was ever executed in the commonwealth for rape.Today, shocking disparities live on. Murder of a white person in Virginia remains three times as likely to end on death row than murder of a black person.Two inmates are currently awaiting execution in the commonwealth: Anthony Juniper, 50, and Thomas Porter, 46. Both are African American. Both will have their lives spared if abolition goes through, though they will remain incarcerated on life sentences with no chance of parole.Advocates of holding on to the death penalty often cite the rights of victims and their families. Even here, though, there are powerful voices for change.Rachel Sutphin’s father, Cpl Eric Sutphin of the Montgomery county sheriff’s office, was taking part in a manhunt in 2006 when he was shot and killed by an escaped prisoner, William Morva. Rachel was nine years old when her father was murdered.In the run-up to Morva’s lethal injection in July 2017 – the last execution to have taken place in Virginia – she pleaded with the then Democratic governor, Terry McAuliffe, to spare the life of her father’s murderer. “I knew his execution wouldn’t bring me any solace or fulfillment. Now his death is just another date in the calendar that brings me great sadness.”Sutphin is hoping bill 2263 will pass. “In this world, in 2021, we should be beyond the point of killing people for killing people,” she said. “It’s so archaic.” More