For nearly 300 years following its founding until 1909, Virginia’s capital punishment preference was hanging. Up to 1918, another 90 individuals were dispatched by lynching, sometime characterized by the euphemistic term “extra-judicial” procedure. In a race to lead, Virginia has executed 1,388 persons since 1608, ahead of Texas, which was second with 1,293. However, since 1976, Texas has made up ground, executing some 538 to Virginia’s 113. Texas, however, takes the blue ribbon when its 493 lynchings are added to the total.
The recent passing of Jerry Givens, Virginia’s designated executioner for several decades contrasted with his later mission to abolish the death penalty raises many questions concerning our criminal justice system. In some respects, the term criminal justice has become an oxymoron, as death row inmates are released due to faulty evidence and sometimes biased prosecutions. How might such ultimate decisions be rendered beyond a unanimous reasonable doubt?
In March 2020, the Fairfax Commonwealth’s Attorney declined to re-prosecute a death row inmate following a federal court finding that the trial judge erroneously disallowed defense evidence relating to the danger the accused posed to the prison community. The trial judge’s error contributed to the death sentence. The Commonwealth’s Attorney said, “a notable outcome because it exemplifies that our criminal justice system can seek justice, find resolution, and keep our community safe while adhering to our community’s values.”
This statement is not inconsistent with even more recent decisions by state officials to release prisoners in light of the coronavirus threat. Such actions reflect a community value that places life and its protection above and beyond reasonable doubt and tend to infuse the criminal justice system with more emphasis upon restorative justice as the goal of society. The introduction of juvenile and drug courts, mediation, alternative sentencing, compassionate parole (geriatric and health) are manifestations of the restorative approach. As a theory of criminal justice, restoration relies upon information and science concerning criminal conduct and eschews older theological imperatives.
Actions [that] reflect a community value that places life and its protection above and beyond reasonable doubt tend to infuse the criminal justice system with more emphasis upon restorative justice as the goal of society…. In contrast, in retributive justice, punishment for criminal conduct prevailed: any eye for an eye.
That the US Constitution is founded upon Judeo-Christina ideals has been rejected by most historians and scholars in favor of its roots emerging from the Age of Enlightenment, which argued for reason and individualism as universal social principles. However, that view was less successful with respect to criminal justice in the colonies where punishment for criminal conduct prevailed; any eye for an eye as the Mosaic law stated and was tacitly accepted by the Protestant leadership.
This precept is known as retributive justice. Its extremes under British and European regimes were buttressed by the “divine right of kings,” which held that rule by royalty existed as authority direct from God. One trace of this principle survived as the US Constitution and most state documents provide the pardon power to the chief executive of the jurisdiction. Punishment and pardon, then, were theologically sewn into US criminal justice.
One purpose of sanctioned retribution is to channel the retributive sentiments of the public into the political and legal systems. The intent is to deter people from resorting to lynchings, blood feuds, and other ugly forms of vigilante self-help. Given the nation’s experience with lynching, this proscription failed. Another purpose is to promote societal solidarity through participation in the act of punishing, under the theory that “the society that slays together stays together.” This approach is said to underscore the notion of “closure” often voiced by prosecutors.
Restorative justice, in contrast, views crime as more than breaking the law; it also causes harm to people, relationships, and the community. So a just response must address those harms as well as the wrongdoing itself. The Iroquois Confederacy, which governed the six nations of Native Americans along the Atlantic coast, employed restorative justice principles. Little or none of its influence infiltrated colonial America.
Prosecutors consistently voice “closure” for families of victims as a reason for the death penalty. In July 2019, the US Attorney General announced resumption of death penalty sentences after a 16-year hiatus…. Barr said: “We owe it to the victims and their families to carry forward the sentence imposed by our justice system.” This presumption of the objectives of society runs counter to the nation’s experience with avoiding capital punishment and increasingly adopting principles of restorative justice in criminal justice matters.
Civilizations tend to create memorials to honor advancements reflecting accomplishments and promote tourism to such destinations. Prisons, on the other hand, tend to be situated in remote regions and discourage tourists. Those facilities that house death row are rarely identified in public information. Prosecutors consistently voice “closure” for families of victims as a reason for the death penalty. In July 2019, the US Attorney General announced resumption of death penalty sentences after a 16-year hiatus. In a statement, William Barr said:
We owe it to the victims and their families to carry forward the sentence imposed by our justice system.
This presumption of the objectives of society runs counter to the nation’s experience with avoiding capital punishment and increasingly adopting principles of restorative justice in criminal justice matters. In some measure, “closure” as pronounced by the Attorney General is more a reflection of the divine right of the state, one absent any doubt, reasonable or otherwise.
With 20 states having abolished the death penalty and an additional 11 not having executed any inmate in the last decade, the practice cannot be deemed to rest upon the unanimity required of a jury of one’s peers or beyond reasonable doubt. Were capital punishment to disappear from all 50 states tomorrow, it would not be missed. Believers and non-believers alike could share confidence that God would not be bereft or angry.