by Claire Guthrie Gastañaga, Executive Director

Virginia is nearing its first execution in three years. On Oct. 1, the Commonwealth is scheduled to execute Alfredo Prieto. If the execution of Mr. Prieto goes ahead as scheduled, the Commonwealth will show that the machinery of death trumps government transparency, accountability, and the U.S. Constitution.

The U.S. Supreme Court ruled 13 years ago in a Virginia case that executing people with intellectual disability (then referred to as mental retardation) violates the Eighth Amendment prohibition against cruel and unusual punishment. But, the Court allowed states to define intellectual disability. At the time of Mr. Prieto’s trial, Virginia law required a capital defendant’s IQ scores to be 70 or below in order to find intellectual disability. The Commonwealth’s use of a hard 70 IQ score had no basis in science. As the American Bar Association pointed out, the use of a bright-line 70 IQ cutoff was “expressly rejected by the American Association of Intellectual and Developmental Disabilities.” And, in 2014 the U.S. Supreme Court agreed when it found Florida’s use of a hard 70 IQ cut off to be unconstitutional.

While logic would suggest that anyone sentenced to death under an unconstitutional standard would get to raise the claim again, Virginia law forbids Mr. Prieto from doing so because it didn’t happen within 21 days of his original trial. That’s right, under Virginia law the fact that Mr. Prieto may be intellectually disabled and therefore ineligible under the U.S. Constitution for the death penalty is not relevant because he missed his three week window to raise the issue regardless of the fact that the U.S. Supreme Court didn’t decide the case until long after the arbitrary window closed.

Denying Mr. Prieto a full and fair determination of his intellectual disability is just part of the problem with this case. The Department of Corrections (DOC) has also done an end run around the General Assembly. During the 2015 legislative session, the General Assembly rejected legislation sought by DOC that would have allowed it to both contract with compounding pharmacies to obtain drugs for use in lethal injection and do so through a process that was exempt from public disclosure laws. DOC sought this authority because of a shortage of available lethal injection drugs. After the General Assembly rejected this legislation, it appears DOC decided to look elsewhere to obtain the drugs used for execution – Texas to be exact. And, it gets worse. According to Mr. Prieto’s attorney, “[d]ue to [Texas’] secrecy laws, [they] have been unable to determine how to assess the quality or effectiveness of the proposed sedative, and whether it was provided and obtained legally.” Thus, not only has DOC obtained a drug made by an unnamed compounding pharmacy, but it did so after the General Assembly expressly rejected this approach to obtaining lethal injection drugs.
This is where Governor McAuliffe comes in. And, as of now, he’s refused to take any action.

The Governor could have chosen to send Mr. Prieto back to California where he also faces criminal prosecution. If granted a temporary delay from Governor McAuliffe, the California courts could make a full and fair determination of his intellectual disability.
Transferring Mr. Prieto to California would not be difficult. In fact, the extradition agreement that brought Mr. Prieto to Virginia anticipated and authorizes his return should he be needed for legal proceedings in California. The Governor could have chosen to honor that agreement.

The Governor could also decide to commute Mr. Prieto’s penalty to life without parole. This would keep a person who may well have an intellectual disability from being executed in violation of the constitution while keeping faith with the victims and their families.
The decision before Governor McAuliffe is not about where he stands on the issue of capital punishment. While we may disagree on whether the death penalty should be abolished (we think it should), we should all agree that if the death penalty exists then its application should be fair, accurate, and constitutional. In these areas, the Commonwealth has failed Mr. Prieto.

Granting Mr. Prieto a temporary delay so that he has the opportunity to challenge his eligibility for execution is nothing more than the Commonwealth’s minimum duty under the U.S. Constitution.

We urge Governor McAuliffe to either delay the execution and transfer Mr. Prieto to California for a determination of his intellectual disability or commute his death sentence to life without parole. Justice demands no less.