Certain Prosecutors: Geographical Arbitrariness, Unusualness, & the Abolition of Virginia’s Death Penalty

Virginia’s abolition of the death penalty in 2021 was a historic development. As both a southern state and one of the country’s most active death penalty jurisdictions, Virginia’s transition away from capital punishment represented an important shift in the national landscape. This article considers whether that shift has any constitutional significance, focusing on the effect of Virginia’s abolition on the geographical arbitrariness of the country’s death penalty. As a starting point, the death penalty in America is primarily regulated by the Eighth Amendment, which bars “cruel and unusual punishments.” The United States Supreme Court has held that the death penalty is not per se unconstitutional, but that the Eighth Amendment constrains its application. In particular, modern death penalty law is concerned with the arbitrary or unusual infliction of the death penalty. Since 2015, the concept of “geographical arbitrariness”—that the death penalty’s localization could render it so random or rare as to be unconstitutional—has gained increased attention. This Article examines whether and how Virginia’s abolition contributes to the geographical arbitrariness of capital punishment in America. The Article finds that Virginia’s experience demonstrates the geographical arbitrariness of the contemporary death penalty in two important ways. First, this Article examines the localization of capital sentencing within Virginia. Capital sentencing and execution data show that as Virginia’s death penalty declined, the practice was kept alive by a small minority of prosecutors who had an unusual passion for death sentencing. In its latter years, Virginia’s death penalty thus increasingly reflected the unfettered discretion of local decisionmakers. Second, this Article considers how Virginia’s abolition affected the national landscape of the death penalty. The Article concludes that both quantitively and qualitatively, the end of Virginia’s death penalty supports a conclusion that capital punishment has become too arbitrary to be constitutional