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)
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).
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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