by Frank Knaack, Director of Public Policy and Communications
Death Penalty
Should Virginia engage in secret, experimental executions?  Regardless of where you stand on the issue of capital punishment, the answer should be easy – absolutely not!  In the United States, government transparency and accountability are non-negotiable.  Unfortunately, the McAuliffe administration and a majority of Senators disagree.  At Governor McAuliffe’s request, Senator Saslaw introduced and the Senate passed SB 1393.  This bill would:

1. Open Virginia up to human experimentation by allowing the Department of Corrections to contract with pharmacies to make up drugs for use in execution by lethal injection (ignoring the disastrous consequences that have resulted from recent cases of botched executions where states have ventured into real life human executions before subjecting those protocols to measured consideration and review); and

2. Create a significant and unnecessary blow to government transparency and accountability by exempting from public disclosure laws the manufacturer of and the materials and components used to create the lethal injection drugs.

The legislation is now before the House of Delegates.
Why the need for secrecy?  As the Washington Post reported, according to the McAuliffe administration, “the secrecy provision was included in the proposal for ‘security’ reasons.”  A claim by the government that it needs secrecy to ensure security is nothing new.  And, as is often the case, the administration’s claim is a red herring.  For more than ten years, the Department of Corrections has made known the materials, components, and entities engaged in the manufacture or supply of materials relating to the execution process without incident.  The administration is without any factual basis for accusing the public of being ill-equipped to handle this information or doubting its ability to continue to do so.  As the American Bar Association stated in its recent Resolution 108B in opposition to state lethal injection secrecy laws, there is no evidence of harassment of or threats against the drug manufacturers and if it did occur “there are civil and criminal remedies available.”
After the recent cases of botched executions around the country, a desire to hide the lethal injection process from public scrutiny seems like a more likely reason for the government’s push for secrecy.
We’re not the only one to raise a red flag around this legislation – SB 1393 has garnered widespread opposition. Here’s a snippet:

Washington Post – “It’s hard to see the compelling need for that kind of blatant censorship, which in other states has been challenged by death row inmates, civil liberties groups and media outlets as an infringement on the First Amendment.  Depriving the public of information on the dark side of capital punishment, and impoverishing the public debate, will not make botched executions any more palatable.”

The Virginian-Pilot – “Virginia lawmakers are coalescing in bipartisan fashion around a terrible idea.  That's not necessarily new, but the consequence of the plan embodied in SB1393 effectively seals critical information about the government's use of lethal injection on behalf of Virginians.”

Dahlia Lithwick writing in Slate – “But while Ohio officials eventually came to realize that the problems with their lethal injection protocol couldn’t be wholly fixed by shrouding executions in ever more secrecy, Virginia lawmakers have arrived at the opposite conclusion.  Last week they proposed legislation that would make it easier to obtain lethal injection drugs and that would also create an almost impermeable layer of secrecy around the execution process.  The new law would make it significantly harder for the press and the public to know what was happening in the execution chamber.  This is, of course, the same Virginia Legislature that flirted last year with reinstating the electric chair if lethal injection drug supplies dried up.  (That effort failed.)  The effect of this new proposed legislation would be less scrutiny of a process that the rest of the nation, including the highest court in the land, views with ever more skepticism.”

Virginia Lawyers Weekly – “The Virginia House of Delegates will have the chance to cure a mistake by the Senate: The House can and should reject a bill that would shroud the Virginia execution process in secrecy and darkness.”

University of Richmond Law School Professors Corinna Barrett Lain and Kevin C. Walsh writing in the Richmond Times Dispatch – “Plain and simple, Virginia’s proposed secrecy law is special-interest legislation designed to shield the government’s death-drug suppliers from moral criticism.  And it comes at a time when the importance of public scrutiny of the death penalty has never been greater.  States are trying new, untested combinations of lethal injection drugs and turning to new, less-regulated sources to provide them.  Virginia is an example of both national trends.  Now it proposes to insulate its private-sector death penalty partners from scrutiny, and for the very purpose of stifling public debate.  We dissent.”

The awesome power of the government to kill in our name must be accompanied by transparency and accountability.  SB 1393 would do away with both.
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