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Virginia Legislators Poised to Attempt Death Penalty Repeal as Governor Sponsors Abolition Bill

Legislators in the Virginia House and Senate are poised to attempt a repeal of its capital punishment statute, as Governor Ralph Northam (pictured) announced that he would sponsor a bill to end the commonwealth’s death penalty.

Northam issued a call to abolish the death penalty during his January 13, 2021 State of the Commonwealth address marking the opening of the 2021 legislative session. “It’s time to change the law and end the death penalty in Virginia,” Northam said. “We’re taking these actions because we value people and we believe in treating them equitably.”

His action marked the first time in Virginia history that a sitting governor had sponsored death-penalty repeal legislation.

Legislators introduced three repeal bills in the House of Delegates and the Virginia Senate on the legislative session’s first day. Two — SB 1165, introduced by Sen. Scott Surovell (D – Fairfax) with Republican co-patron, Bill Stanley (R – Franklin) and HB 2263, introduced by Del. Michael Mullin (D – Newport News) — are sponsored by the Governor. Del. Lee Carter (D – Manassas) has also introduced an abolition bill, HB 1779. Legislative leaders plan to conduct hearings on the repeal bills in the next several weeks.

The repeal bills appeared to gain momentum in the days leading up to the start of the legislative session as state Attorney General Mark Herring and twelve county prosecutors joined a coalition of African American faith leaders in calling for abolition.

Echoing Northam’s message, Herring said “it is time for Virginia to end the death penalty.” “I will support Governor Northam’s efforts to make it happen this year,” he said. “Its abolition must be part of our work to reform a flawed and imperfect criminal justice system.”

Federal Government Executes Corey Johnson, Who was Likely Intellectually Disabled, Without Any Judicial Review of His Eligibility for the Death Penalty

For the second time in less than five weeks, the federal government has executed a death-row prisoner who likely was intellectually disabled, without affording him judicial review to determine his eligibility for the death penalty. Corey Johnson (pictured) was pronounced dead from lethal injection at 11:34 p.m. on January 14, 2021, the 12th federal prisoner executed in six months and the fifth in the transition period between Donald Trump's defeat in the November 2020 presidential election and the scheduled inauguration of Joseph R. Biden on January 20, 2021.

The only other time in U.S. history that as many as five transition-period executions took place was in 1884-1885 during the transition between Chester A. Arthur and the first presidency of Grover Cleveland.

In an order issued at 10:00 p.m., four hours after Johnson was scheduled to be executed, the U.S. Supreme Court denied Johnson’s emergency application for a stay of execution to permit him to present evidence that the constitution prohibited his execution because he has intellectual disability. Justices Kagan and Sotomayor dissented. The U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that the execution of people with intellectual disability violates the Eighth Amendment proscription against cruel and unusual punishments. Johnson also argued that his execution would violate a 1988 federal statute that forbids applying the federal death penalty to prisoners with intellectual disability.

Earlier in the evening, in an 8-7 vote, the judges of the U.S. Court of Appeals for the Fourth Circuit declined to reconsider a three-judge panel’s ruling refusing to grant Johnson an evidentiary hearing on his claim. In dissent, Judge James A. Wynn wrote, supplying emphasis, that “Corey Johnson is an intellectually disabled death row inmate who is scheduled to be executed later today.” Newly available evidence, he wrote “convincingly demonstrates … that he is intellectually disabled under current diagnostic standards. But no court has ever considered such evidence. If Johnson’s death sentence is carried out today, the United States will execute an intellectually disabled person, which is unconstitutional.”

On December 11, 2020, the federal government executed Alfred Bourgeois despite evidence that he may have been ineligible for the death penalty because of intellectual disability. During his earlier appeals, a federal court in Texas denied Bourgeois’ claim of intellectual disability, relying on a series of lay stereotypes that had no clinical validity and whose use the Supreme Court later declared unconstitutional. When he sought to obtain judicial review of his condition based upon current clinical definitions of the disorder, another federal district court found that he had made a “strong showing” of intellectual disability and granted him permission to litigate that claim. A federal appeals court reversed, saying Bourgeois had already been provided an opportunity to litigate his claim, and the U.S. Supreme Court allowed the execution to go forward.