House rejects lethal injection secrecy bill

The Virginia House of Delegates defeated a bill Feb. 24 that would have kept secret the lethal injection process used in executing death row inmates, even under the state's Freedom of Information Act.

Senate Bill 1393 sought to keep confidential the names of pharmaceutical companies that manufacture the chemicals used for lethal injections. Many of these foreign companies have been under public scrutiny for facilitating the death penalty and stopped selling the drugs for executions in the United States.

The bill, which had passed the Senate 23-14 on Feb. 10, failed in the House on a 42-56 vote.

Virginia gives inmates the choice between death by the electric chair or lethal injection, which involves a three-drug compound. The bill would have provided a FOIA exemption for the execution process "except information relating to the name or amounts of the materials or components used to compound drug products."

Critics of the death penalty, including the Virginia Catholic Conference, opposed SB 1393, which comes in the wake of botched executions in Ohio, Oklahoma and Arizona. In those executions, the lethal injection drugs administered to inmates did not work properly.

On Feb. 12, the Reporters Committee for Freedom of the Press, an advocacy group for journalists, wrote a letter to Virginia legislators, saying that the FOIA exemption would "make it impossible for Virginians to evaluate whether the decisions of their government in choosing execution drugs, as well as the source of those drugs, are proper."

The letter said SB 1393 "appears intended to shield from public scrutiny information that is especially crucial for citizens of the Commonwealth to receive - namely, information regarding whether such pharmacies are conducting their businesses in accordance with state and federal law, and whether they are taking required measures to ensure the quality of drugs to be used in executions."

Sen. Richard L. Saslaw, D-Fairfax, who introduced the measure, said the bill's critics were being inconsistent. He said that during his 35 years in the Senate, he has never seen anybody question the origins or construction of the electric chair, for example.

Saslaw likened SB 1393 to federal laws that protect sensitive information.

"When the Department of Defense - and there's a federal Freedom of Information Act - you know who builds the B-1 bomber, who builds the F-14 and the F-16," Saslaw said. "What you don't know is who manufactures and assembles our thermonuclear warheads. There's a reason for that."

The reason, Saslaw said, is to protect those companies from public outcry or acts of terrorism.

Del. David B. Albo, R-Springfield, drafted an amendment to SB 1393 in the House Courts of Justice Committee. The amendment sought to allow inmates set for execution and their defense attorneys' access to the information regarding the drugs used for lethal injection.

"If I was being executed, I'd want to make sure that they're following the law," Albo said. "If this all remains secret, then there's no way to make sure people are following the law."

With Albo's amendment, SB 1393 was endorsed on a 12-6 by the House Courts of Justice Committee. It also had the support of Gov. Terry McAuliffe. Even so, the bill failed on the House floor when numerous Republicans, including House Speaker Bill Howell, joined Democratic delegates in voting against it.

During a meeting last week of the House Courts of Justice Committee, Kevin Walsh, a professor at the University of Richmond School of Law, called the bill premature, citing ongoing death penalty litigation in Florida.

"The Supreme Court's going to decide the constitutionality of the protocol that Virginia wants to model its protocol on," Walsh said. "The stay out of Florida is the stay of an execution that would use the same three drugs. So no matter what happens, you're going to be back dealing with this stuff next year."

Jeff Caruso, Virginia Catholic Conference executive director, wrote in an alert sent to the organization's grassroots advocacy network:

"The Virginia Catholic Conference thanks all delegates who voted nay, and especially Delegates LeMunyon, Surovell, Herring and Morris who made articulate and effective floor remarks against the bill. In addition, the conference gratefully acknowledges all our grassroots advocates who over the last several weeks took repeated action on our alerts on this legislation. Your advocacy helped turn around this bill, which appeared headed toward certain passage. Never doubt that our mutual Catholic advocacy can make a difference in the outcome of a bill. It can, and today it did."

Zawitkowski can be reached at zawitkowskiv@vcu.edu.

© Arlington Catholic Herald 2015