COMMENTARY: Death penalty is unfair and must be repealed BY STEPHEN A. NORTHUP

FILE/STEVE HELBER/ASSOCIATED PRESS Earl Washington Jr. (left) was on death row before DNA testing exonerated him of the crime.

FILE/STEVE HELBER/ASSOCIATED PRESS Opponents of capital punishment protest outside the Greensville Correctional Center at an execution in 2009.

The Free Lance-Star – THE DEATH PENALTY has been much in the news lately. Earlier this year, there were botched executions in both Ohio and Oklahoma, both caused by the use of questionable or outdated drugs in conducting lethal injections. (The last words of the Oklahoma inmate, Michael Lee Wilson, were “I feel my whole body burning.”) And within the past month, the United States Supreme Court held that Florida’s definition of intellectual disability (in the context of deciding whether a defendant was too disabled to be eligible for the death penalty) was too rigid to ensure that the ultimate punishment is not inflicted on someone too disabled to be held fully responsible for his actions. Notably, Virginia’s definition of intellectual disability in the con text of the death penalty is identical to Florida’s.

These events raise the question whether it is possible to administer the death penalty in manner that is fair and humane. Putting aside the larger question whether the notion of a “humane execution” is hopelessly oxymoronic, I believe these latest developments are symptoms of an even more fundamental question— should Virginia (and other states) continue to have a death penalty? I submit that the answer should be a re sounding “NO.”

There are many more problems with the death penalty than finding drugs to conduct lethal injections or ensuring that we do not execute the intellectually disabled and others who should not be held fully responsible for their actions.

Since 1973, more than 140 people from throughout the United States have been exonerated and freed from death row. Exonerations from death row have occurred as recently as last year and have included one Vir ginian. No matter how hard we strive for accuracy in our criminal justice system, we will never be able to make it foolproof, simply because it will always be administered by human beings, who are inherently fallible. Yet the death penalty is an irrevocable punishment. This fundamental inconsistency prompted the Marquis de Lafayette, the French hero of our Revolution, to exclaim: “I shall ask for the abolition of the death penalty until I have the infallibility of human judgment demonstrated to me.”

There will also always be elements of unfairness in use of the death penalty, regard less of our efforts to make it fair. In a completely fair system, the death penalty would be applied evenhandedly, without regard to such factors as the race and wealth of defendants or the prejudices and political ambitions of prosecutors. Yet such factors are invariably present in all cases. The randomness of imposition of the death penalty was recently documented in a Report by the Death Penalty Information Center entitled “Struck by Lighting: The Continuing Arbitrariness of the Death

Penalty Thirty-Five Years After Its Reinstatement in 1976.” The Report can be found at StruckByLightning.pdf.

The risk of inaccuracy and inevitable unfairness in use of the death are undoubtedly factors in the growing inter national movement toward abolition of capital punishment. Europe and the vast majority of countries in the Western world have abandoned use of the death penalty. From that part of the world, only the United States is included among the countries with the greatest number of executions during the past 10 years. Other countries on that list include China, Iran, Iraq, Saudi Arabia, Yemen, Pakistan and North Korea—hardly the kind of company to which most Americans would aspire.

Here at home, during the past six years six states have abolished capital punishment: New York, New Jersey, New Mexico, Illinois, Connecticut and Maryland. Three states have recently imposed moratoriums on executions because of problems with the system: Colorado, Oregon and Washington. Strong abolition movements are under way in a number of other states.

Almost 20 years ago, fol lowing a 20-year struggle with the issue of capital punishment, Justice Harry Blackmun concluded that “the death penalty experiment has failed” and that it was time to abandon the “delusion” that capital punishment could be consistent with the Constitution. In an opinion accompanying his vote to overturn the death sentence of a Texas inmate in the case of Callins v. Collins, he stated “From this day forward, I no longer shall tinker with the machinery of death.”

In the context of the rising tide against capital punishment, finding appropriate drugs with which to conduct lethal injections and fine- tuning the definition of intellectual disability amount to little more than tinkering with the machinery of death. Sooner or later, Virginia— like Justice Blackmun almost 20 years ago—will come to the conclusion that the death penalty experiment has failed and will end its system of capital punishment.

Stephen A. Northup is a retired partner with the law firm Troutman Sanders, and serves as the executive director of Virginians for Alternatives to the Death Penalty. He can be reached at