In June of 2002 the United States Supreme Court issued a ruling in Atkins v. Virginia which banned the execution of the mentally retarded, noting that such a practice was a violation of the 8th Ammendment.  The decision has caused broad changes in death penalty policy nationwide.

In 2000, Governor James Gilmore granted an absolute pardon to Earl Washington, who had spent ten years on Virginia's death row prior to his commutation in 1994. Washington was arrested for another crime in 1983 when police convinced him to confess to another murder from 1982. Washington, who has an IQ of 69, was later proven innocent by DNA testing, and his sentence was commuted to life by then Governor Douglas Wilder. Gilmore ordered further testing in 2000, the results of which cleared Washington completely, and he was freed.

Survey results from the 2002 Quality of Life in Virginia Poll show that support for Virginia's death penalty has dropped.  When surveyors asked respondents if they supported the death penalty, 68% agreed. This represents the lowest total in a decade. When asked about the alternative of life with no possibility of parole for a minimum of 25 years combined with restitution for the victims families, over half of the respondents (52%) agreed with this alternative to the death penalty.