Recently, Virginia Governor Terry McAuliffe amended a bill passed by the legislature that would mandate the use of the electric chair as the default method of execution if the state were unable to obtain the necessary drugs for lethal injection. Governor McAuliffe proposed instead to enlist compounding pharmacies to manufacture the drugs for the lethal injection protocol and shroud the pharmacies' identities in secrecy by making them exempt from the Freedom of Information Act and by prohibiting public dissemination of information regarding the origin of the lethal injection drugs.
Such a bill is not the first of its kind. Legislation that makes confidential information regarding the creation, distribution, and administration of lethal injection drugs has emerged across the country in response to the recent shortage of drugs that states need to carry out lethal injections, such as sodium thiopental and pentobarbital. The European Union has enacted measures to regulate the export of drugs used in lethal injections and domestic pharmaceutical manufacturers are refusing to provide states with drugs needed to execute prisoners, stating that executions are an improper use of their drugs. By concealing the identities of the compounding pharmacies that supply the lethal injection drugs to the state, the pharmacies would no longer be open to the lengthy legal challenges and immense public pressure they have faced in the past and would be more willing to do business in Virginia, according to the governor.
Though Governor McAuliffe has proposed the legislation in the hopes of providing a "humane way to carry out capital punishment," laws allowing compounding pharmacies to manufacture lethal drugs in secret pose an unacceptable risk that inmates will face a cruel and unusual death in violation of the Eighth Amendment. First, because compounding pharmacies are not federally regulated, there is a substantial concern about the sterility and the efficacy of the drugs they produce. For example, in 2012, tainted injectable drugs from a compounding pharmacy caused a meningitis outbreak that killed 64 people across the country.
Second, in light of the several recent botched executions nationwide, the lack of government transparency regarding execution protocols undermines the public's faith in the integrity of the justice system, because it conceals information about the lawfulness of the drugs used in the state's lethal injection procedures. Furthermore, such secrecy laws prevent inmates from receiving any information on how the drugs being used for their execution are produced and used, thereby depriving them of their due process rights to ensure the legality of the state's lethal injection protocol.
In its 2014 report, Irreversible Error, The Constitution Project's Death Penalty Committee underscores the dangers of the lack of transparency in the development and administration of states' lethal injection protocols. The bipartisan, blue-ribbon committee is made up of both death penalty supporters and opponents, including two former Virginia Attorneys General, Democrat William G. Broaddus and Republican Mark Earley, Jr. It warns against secrecy practices exactly like the one proposed in Virginia, urging that states instead handle the implementation of lethal injection protocols in a transparent manner that allows for appropriate levels of legal, media, and public scrutiny. The committee also condemns the use of drugs manufactured by under-regulated compounding pharmacies like the ones that Governor McAuliffe wishes to employ in Virginia: such lax state regulations mean that drugs produced in compounding pharmacies are subject to less testing and may include contaminants that cause significant pain.
States must take the right measures to ensure the effectiveness of the drugs used for lethal injections, including appropriate procedures to ensure the proper manufacturing, transportation, handling, and use of the drugs.
Governor McAuliffe's proposal to shroud in secrecy the state's process of obtaining drugs used in lethal injections is not an effective solution to the potential lack of execution drugs in Virginia, but rather gives rise to the risk of botched executions and significant constitutional violations. He may think his proposed amendment will improve the fairness and administration of capital punishment in Virginia, but our panel of criminal justice experts from across the ideological spectrum strongly disagrees with him.
This column was co-authored with Esha Kamboj, Public Interest Law Intern.