To Electrocute, or Not to Electrocute – that is the Wrong Question!

by Frank Knaack, ACLU of Virginia Director of Public Policy and Communications
We need the electric chair in case we run out of lethal injection drugs, period. That was the death penalty rhetoric dominating the last General Assembly session. That statement clarifies everything that is wrong with the current death penalty debate in the Commonwealth. We’re focused on keeping the death penalty system moving, regardless of concerns with the system’s fairness and accuracy (and also regardless of the human guinea pig experiments currently occurring in many lethal injection states).
Over ten years ago, we published Broken Justice, a report documenting serious flaws in Virginia’s death penalty system. There have been a number of positive developments since we published the report:

• Public support for the death penalty has declined
• The number of executions and new death sentences has declined
• Over 30 death row inmates have been exonerated (bringing the total to 144)
• The U.S. Supreme Court said that it is cruel and unusual (and therefore unconstitutional) to execute juveniles (under 18 when the crime is committed)
• Just a few weeks ago, the U.S. Supreme Court said that states cannot rely on a rigid 70 IQ cut off for determining whether an individual is intellectually disabled, and therefore ineligible for the death penalty (Virginia relies on this rigid cut off)

Now, let’s talk about the negative developments. Well, “developments” may be the wrong word to describe problems that have been widely known for years (and ignored by our lawmakers). As we’ve written about here before, last summer the American Bar Association released The Virginia Death Penalty Assessment Report, which was prepared by an assessment team including a former federal prosecutor, a former Virginia prosecutor, a former capital defender, a professor and former dean of the University of Richmond Law School, a former Virginia Circuit Court Judge, a former Republican Virginia Attorney General, and a Democrat member of the Virginia Senate. That’s a long way of saying the report’s findings, which cast further doubt on Virginia’s ability to ensure a fair and accurate death penalty process, should be taken VERY seriously.
The ABA’s report found concerns extending from the suspect’s initial contact with law enforcement at the beginning to the post conviction process at the end, including problems 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 (Virginia relies on a standard that, as noted above, the U.S. Supreme Court just found to be unconstitutional).

In addition to documenting the lack of fairness and accuracy in Virginia’s capital punishment system, these problems highlight the inherent arbitrariness of our death penalty. For example, until last month when the U.S. Supreme Court invalidated the standard used in Virginia, an individual could have been executed in Virginia if they had an IQ score of 71, but not 70, even though the margin of error in the IQ test is acknowledged to be much greater than 1. It’s past time for the General Assembly to stop waiting for direction from the U.S. Supreme Court before addressing the serious flaws in our capital punishment system.
Putting aside differences over the morality and effectiveness of the death penalty (we think it should be relegated to the dustbin of history), we should all agree that if we have capital punishment then it should be used in a fair and accurate way. And, Virginia falls short in the fairness and accuracy department.
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