The Death of Capital Punishment

As a recent college graduate working in Virginia Gov. L. Douglas Wilder’s administration, Scott Surovell toured the state’s new correctional facility in Jarratt, including the execution chamber and its electric chair, which had been added from another prison.

“It is pretty disgusting,” he recalled about the prison tour, “and so to be around a chair that a couple hundred men got electrocuted in was not a pleasant experience. So that kind of did it for me.”

Nearly 30 years later, Surovell, a 1996 graduate of the University of Virginia School of Law, sponsored legislation as a state senator that ended capital punishment in Virginia.

The commonwealth of Virginia has executed more people than any other U.S. state over four centuries and is second only to Texas nationwide in executions since the U.S. Supreme Court reinstated capital punishment in 1976, with 113. In one of the country’s landmark death penalty cases that may have marked a turning point, the justices ruled in a Virginia case in 2002 that executing convicts with intellectual disabilities violated the Eighth Amendment’s ban on cruel and unusual punishment.

Thanks to Surovell’s efforts, effective July 1, Virginia will be the first state in the former Confederacy to abolish the death penalty.

Surovell was first elected to the House of Delegates in 2009 and has served in the state Senate since 2016, representing Fairfax, Prince William and Stafford counties. He is a founding member of Surovell Isaacs & Levy in Fairfax, where he focuses on traffic defense, consumer law, personal injury, family law and appeals. His father, Robert J. Surovell ’69, is also a member of the firm.

Surovell has never represented a murder suspect or witnessed an execution — “I can’t imagine going to watch” — nor has he ever represented capital defendants.

Public opinion nationally and statewide has shifted against capital punishment, he explained, and the Virginia Capital Representation Resource Center, led by UVA Law alumnus Robert Lee ’92, mitigated death sentences. The public has been ahead of politicians on repeal, he added.

“How do you justify the government executing an innocent person so that it still has the ability to execute nine guilty people?” Surovell said, pointing to exoneration data suggesting that as many as 10% of inmates could be innocent. “I’ve never heard anybody be able to morally justify that, and I think most people find that just completely abhorrent.”

Professor Jennifer Givens, a director of the Innocence Project Clinic at UVA Law, supported repeal. As a former senior staff attorney with the Virginia Capital Representation Resource Center, she attended two clients’ executions at their behest because they would feel comforted by her presence, but she refused to watch. Givens said abolition in Virginia is “somewhat remarkable,” given the state’s death penalty history and record.

“The racial bias inherent in the death penalty is beyond dispute, as is the fact that we have sentenced innocent men and women to death,” she said. “The abolition of the death penalty marks a significant first step in improving our criminal justice system, as it evinces a recognition of some of its deepest flaws.” 

Givens added, “I will remain forever grateful to Sen. Surovell for his dogged efforts to end the death penalty in Virginia.”

Surovell said lawmakers vote around the edges on many hotly debated issues every year, such as birth control, abortion or firearms. Democrats also previously curbed use of capital punishment and opposed its expansion, he noted.

“But completely taking it off the table is a different discussion.”

The first obstacles to repeal were his fellow Democrats. The party won control of the General Assembly after flipping both chambers in the 2019 election, but, Surovell noted, that was no guarantee that ending capital punishment was on the table for the new Senate majority.

“I remember when we had our first caucus meeting after we took the majority in 2019, and I took a poll in caucus and the votes weren’t there,” he said, recalling he was about seven votes short. “So I had to have some conversations with folks and get members more comfortable with the idea.”

Surovell’s bill was put on hold in 2020. He said garnering support from Gov. Ralph Northam and some Republican colleagues helped move the bill forward this year. However, bipartisan support evaporated after Surovell refused to agree to downgrade former capital offenses with mandatory life sentences. In the end, he needed every Senate Democrat he could muster, and they all voted for repeal.

“I really had to hold my caucus together, and I had a couple of members who, personally, are supportive of the death penalty but were willing to vote to repeal just because they recognized that the public’s moved on,” he said.

Surovell’s legislation changes 15 capital murder offenses in the state code to aggravated murder. Adult defendants convicted of Class 1 felonies now face life imprisonment and are ineligible for parole, reduced sentences or compassionate release. Sentences for Virginia’s two death row inmates have been commuted to life imprisonment.

Although the state has executed two people in the past five years, Surovell said that scores of capital cases have been brought by prosecutors in that time to spur plea deals. By ending the institution, he said, not only will the state save millions of dollars on protracted trials, but also by abolishing the capital defenders office altogether. He said fewer death sentences also likely persuaded lawmakers that the time had come for abolition.

Also in the past year, Surovell pushed to end Virginia’s jury sentencing law that dates to 1796 and led the criminal and policing reform effort during the 2020 special session called in the wake of George Floyd’s death. He also worked with state Sen. John S. Edwards ’70 to codify a right to civil and criminal appeals, based on a report co-authored by Professor Emeritus Kent Sinclair.

Surovell said he has successfully shepherded plenty of bills in the past that have affected hundreds of thousands of people, but he’s received more thank-you notes from ordinary people about ending capital punishment than on any other legislation.

“I think that’s because the death penalty speaks to a lot of people’s hearts and says a lot to them about what kind of country, what kind of state and what kind of community they live in,” Surovell said. “It speaks to a lot of people’s fundamental values as human beings, and it just touches a lot of people in a lot of ways that other policies don’t.”