Rupert Cornwell: Out of America

Even in the heart of the old Confederacy, voters no longer bay for blood vengeance

The two are separated by the Potomac River (over whose waters they have been squabbling for years), but for most purposes it might be the Atlantic Ocean. Though it currently has a Republican Governor, Maryland is among the most solidly Democratic states in the land. Virginia is the exact opposite, eternally Republican but with a Governor who happens to be a Democrat. And their views on the death penalty are equally at odds.

Maryland has the death penalty, but rarely applies it. Virginia, on the other hand, executes people with a gusto exceeded only by Texas. That was why the bloodthirsty former Attorney General, John Ashcroft, insisted the snipers who terrorised the Washington area in 2002 be tried in Virginia (where they killed one person) and not Maryland, where they killed six.

Virginia, he said chillingly, had "the best range of available penalties" - including a readiness to execute juveniles like John Lee Malvo, the younger sniper, who was 17 when the crimes were committed. Three years on, however, the mindset may be changing - if Virginia's current campaign for Governor is anything to go by.

There are any number of pressing issues for Virginia's voters: immigration, local taxes, suburban sprawl, the traffic that is choking the state to death or the miserable performance of the man in Washington who runs the country. But the candidates aren't talking about any of this. They are fixated on the death penalty - or rather, the opposition of the Democratic candidate, Tim Kaine, to the death penalty, which his Republican opponent, Gerry Kilgore, has seized on as an issue to split the Democratic vote.

Mr Kilgore has been running TV ads featuring a father whose son was murdered 12 years ago. His killer was executed, but not before Mr Kaine had represented him as a court-appointed lawyer for death row inmates. The ads are despicable. In a country where legal representation of defendants in capital cases is often next to nonexistent, a decent lawyer in an appeal from death row is the minimum a civilised society should offer.

Not content with that, the advert twists a considered reply to a newspaper interviewer into the statement, "Tim Kaine says Adolf Hitler doesn't qualify for the death penalty". What Mr Kaine, a practising Catholic, actually said was that, as a rule, "God grants life and God should take it away", but that in especially heinous cases, including Hitler among others, the death penalty might be deserved.

But by the standards of the black arts of political propaganda, this one would made Karl Rove proud. It is rivetting stuff, featuring a soft piano in the background and one of those oily-husky voice-overs peculiar to American political attack ads, cynically exploiting the moral authority of bereavement. You might think that the ad is wowing punters in the run-up to next week's election.

You would, however, be wrong. If anything, the ad has backfired on Mr Kilgore. His contest with Mr Kaine remains a statistical dead heat, but some pollsters report that voters are less, rather than more, likely to back the Republican after seeing the ads.

There are several possible explanations. Mr Kaine has followed the first rule of dirty campaigns (if your opponent gets rough with you, hit back fast and hard) and denounced Mr Kilgore's "vile attempt" to use an emotional issue for political gain. By taking a principled moral stance, Mr Kaine has enlisted faith and religion to his cause - something Republicans are normally much better at than Democrats.

But something else may be at play. Capital punishment is slowly losing ground in Virginia, as everywhere else in the US. Of course, a majority there support it. But that majority becomes a minority when offered the choice between the death penalty and life in prison without parole.

Juries are handing down fewer capital sentences, while the number of executions nationwide has declined since the peak of 98 in 1999. Despite its narrow conservative majority, the Supreme Court is also nibbling at the death penalty. Since Malvo was convicted, the court has outlawed the execution of juveniles. Nor may the mentally incapacitated any longer be put to death. Which are all reasons why Mr Kaine could become a rare example of an opponent of capital punishment who is elected Governor of a state of the old Confederacy.