John G. Douglass *

Virginia now averages less than a single death sentence each year,[1] a far cry from its not-too-distant history as the second most active death penalty state in the nation.[2] The numbers alone tempt us to forecast the death of Virginia’s death penalty: a death by disuse. But those numbers leave much of the story untold. The plummeting number of death sentences is only the diminishing tip of a larger, more stable iceberg of capital case litigation. That iceberg is melting very slowly, if at all.

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    Professor of Law, University of Richmond School of Law. My thanks to David Johnson and Maria Jankowski for helpful insights. Thanks also to D.J. Geiger, the principal author of the Virginia Indigent Defense Commission Report, see infra Part I.D, for her thoroughness in assembling and organizing data on capital indictments. And thanks to Laura Joseph for very capable assistance with research.

[1].    Since 2004, Virginia courts have sentenced nine people to death. Death Sentences in the United States from 1977 by State and by Year, Death Penalty Info. Ctr., http:// (last visited Feb. 27, 2015) [hereinafter Death Sentences by State/Year].

[2].    Virginia has executed 110 people in the post-1976 “modern” era of the death penalty. Number of Executions by State and Region Since 1976, Death Penalty Info. Ctr., (last visited Feb. 27, 2015) [hereinafter Executions by State]. Prior to 2014, that placed Virginia second behind Texas’s 508 executions. Id. In 2014, Oklahoma executed three individuals and now occupies second position with 111 executions. Id.