That's the title of an OpEd by Mark L. Earley Sr. and Anthony F. Troy, published in the Washington Post earlier this month. Earley, a Republican, and Troy, a Democrat, both served as Attorney General of Virginia. Here's the beginning:
As former attorneys general of Virginia, we come from different political parties but are firmly united on an issue important to all Virginians: If the commonwealth is going to have the death penalty, it needs to get it right. It must ensure that its procedures — from arrest to execution — are fair, and it must minimize the risk of executing an innocent person.
We now have extensive evidence documenting the need for modest but vitally important changes to Virginia’s death penalty process. A team of Virginia legal experts, assembled by the American Bar Association, recently released a 400-page report detailing the challenges faced by the commonwealth in ensuring fairness and accuracy in death penalty cases. The team, which includes three former or current prosecutors, a former circuit court judge and two capital defense lawyers — identified a number of ways in which Virginia’s death penalty is out of step with modern forensic and social sciences and areas where the commonwealth’s practices are out of step with those of other states.
Unlike many reviews of capital punishment in the United States, this group’s charge was not to determine whether the commonwealth should have a death penalty. Instead, its operating position was that as long as Virginia has a death penalty, it must be reserved for a narrow category of the worst offenders and offenses, ensure heightened due process and minimize the risk of executing the innocent. We could not agree more.
The report sets out a sober, detailed explanation of the system’s shortcomings. Virginia has one of the most restrictive laws governing discovery of evidence in criminal trials — including death penalty cases. Discovery rules governing automobile accident cases in the commonwealth offer far more information than those for a defendant facing capital punishment. Such a system not only fails the fairness test but also makes extensive post-trial litigation, reversals and retrials much more likely. Indeed, two people convicted of capital murder more than a decade ago in Virginia — Michael Hash and Justin Wolfe — recently had their convictions reversed by federal courts because of withheld evidence.
Earlier coverage of the ABA Virginia Assessment begins at the link. You can also get more information on the ABA's Death Penalty Due Process Project and view other state assessments.
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