Of the many issues that our legislators should be focused on right now, doubling down on the Commonwealth’s embrace of its electric chair should not be one of them. Why the new focus on this barbaric practice (see HB 1052 & SB 607)? Well, it’s partly because of the difficulty that states are having at acquiring lethal injection drugs (thanks to the European Union’s stance against the death penalty). Under Virginia law, the people on death row can choose between lethal injection and the electric chair, and if they don’t choose then our Commonwealth must default to lethal injection. Proponents of this legislation argue that if lethal injection drugs become unavailable, then the state cannot execute the folks on death row (unless the person asks for the electric chair). This is a good thing! Beyond its basic inhumanity, the death penalty does not offer a do over. And, with the increasing evidence (see here and here) that innocent people have been executed in the United States (not to mention the 18 people exonerated and proven innocent through DNA testing after spending time on death row, including one from Virginia), it’s past time for Virginia to end its capital punishment era.
But, while we may disagree on whether Virginia should have a death penalty, we should all agree that if it does, then the process must be fair and accurate. Unfortunately, Virginia falls short in the fairness and accuracy department. While the ACLU of Virginia has long noted concerns with Virginia’s administration of the death penalty, just last summer, the American Bar Association (ABA) published a report that cast further doubt on the ability of Virginia to ensure a fair and accurate application of its death penalty process. The report found “several areas of concern,” including concerns with:
- Law enforcement identification and interrogation procedures;
- The collection, preservation, and testing of DNA and other types of evidence;
- Varying standards and policies governing the decision of a prosecutor to seek the death penalty;
- Restrictive discovery rules (so defendants lack access to basic information necessary to prepare their defense);
- Inadequate funding for high quality legal representation for indigent defendants;
- Lack of meaningful habeas review:
- Confusing jury instructions;
- General patterns that race and ethnicity may affect the administration of the death penalty; and
- Inadequate protections to ensure that the Commonwealth does not execute [intellectually disabled] individuals (which the U.S. Supreme Court found unconstitutional in a case from Virginia).
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