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McAuliffe guts Virginia’s electric-chair bill In a move that could jeopardize executions, McAuliffe wants to shield identity of makers of lethal injection drugs
(about 5 hours later)
RICHMOND — Virginia Gov. Terry McAuliffe gutted a bill to let Virginia use the electric chair when it cannot find scarce lethal-injection drugs, making an 11th-hour amendment Sunday that would instead allow the state to hire a pharmacy to make a special batch in secret. RICHMOND — Several leading Virginia Republicans said Monday they would join Gov. Terry McAuliffe in his effort to use secret pharmacies to supply the drugs the state needs to execute death row inmates by lethal injection.
Up against a midnight deadline to veto or amend legislation from this year’s General Assembly session, McAuliffe (D) scrapped the essence of a measure intended to address the drug shortage by making the electric chair Virginia’s default method of execution. McAuliffe (D) on Sunday gutted a bill passed by the legislature that would have required the use of the electric chair if the state couldn’t obtain the drugs, which have become scarce around the nation.
The chair is already an option in the state, where condemned inmates are allowed to choose between it and lethal injection. The measure was intended to remove the choice if the state cannot obtain the drugs, which have grown scarce amid political pressure against the death penalty. Although lethal injection remains the primary method of execution in the United States, a European ban has stopped pharmaceutical firms from exporting the drugs to the U.S. and pharmacies here face political pressure from opponents of capital punishment.
[Va. assembly passes bill to use electric chair when execution drugs aren’t available] McAuliffe wants Virginia to be able to special order the drugs from compounding pharmacies whose identities would be hidden to protect them from backlash. “These manufacturers will not do business in Virginia if their identities are to be revealed,” he said.
McAuliffe’s amendment comes at the scarcity issue in a different way, by allowing the state to special-order the drugs from compounding pharmacies, whose identities would be kept secret to shield them from pressure. McAuliffe backed a bill to that effect last year, but the measure died amid controversy over the secrecy provisions. But McAuliffe’s plan could throw into question the future of executions in Virginia. Arkansas, Missouri and Ohio are among other states that have placed similar shields over the pharmacies that produce lethal drugs and have faced lengthy legal challenges in state and federal courts. In Arkansas, which hoped to resume executions after a decade-long lull, the legal challenge has delayed several lethal injections scheduled to take place last fall and winter.
McAuliffe’s amendment once again seeks to keep the names of the pharmacies private, potentially even from lawsuits that could arise from a botched execution. Meanwhile, the inability to obtain the drugs has slowed the pace of executions across the country and in Virginia, which has executed 111 inmates since the U.S. Supreme Court reinstated the death penalty in 1976 - ranking it third behind Texas and Oklahoma for the state with the most executions.
The names of the pharmacies and any other indentifying information “shall be confidential, shall be exempt from the Freedom of Information Act . . . and shall not be subject to discovery or introduction as evidence in any civil proceeding unless good cause is shown,” McAuliffe’s amendment reads. McAuliffe, who is personally opposed to capital punishment, said he was trying to find a way to avoid the use of the electric chair, which he called “reprehensible” method of execution.
McAuliffe has pledged to uphold capital punishment as a matter of Virginia law. He gave a step-by-step description of “reprehensible” electric-chair executions at a news conference Monday and said his goal was to preserve the state’s ability to carry out executions in a way that he described as “humane.” “We take human beings, we strap them into a chair, and then we flood their bodies with 1800 volts of electricity, subjecting them to unspeakable pain until they die,” McAuliffe told reporters. “Virginia citizens do not want their commonwealth to revert back to a past when excessively inhumane punishments were committed in their name.”
“We take human beings, we strap them into a chair, and then we flood their bodies with 1800 volts of electricity, subjecting them to unspeakable pain until they die,” McAuliffe said. “Virginia citizens do not want their commonwealth to revert back to a past when excessively inhumane punishments were committed in their name.” The governor’s approach further scrambled alliances in the complicated debate over capital punishment, putting McAuliffe at odds with liberal Democrats who want to end state executions and forcing conservative Republicans to choose between an enforceable death penalty and government transparency.
Republican death-penalty supporters, including the bill’s sponsor, Del. Jackson H. Miller (Manassas), did not immediately respond to McAuliffe’s action. The GOP-controlled legislature will have the opportunity to accept or reject McAuliffe’s amendment when it returns for its veto session April 20. McAuliffe said if lawmakers did not accept his amendment to allow compounding pharmacies to manufacture the lethal drugs in secret, he would veto their electric chair bill, essentially placing executions in the state in limbo.
McAuliffe warned legislators that if they do not accept his amendment, he will veto the legislation — a move that he said will end capital punishment in Virginia, at least until some other source for the drugs is found. “All I’m doing today is providing a humane way to carry out capital punishment here in Virginia so we have options,” he said. “If they do not take it up, I want to be clear, they will be ending capital punishment here in Virginia.”
“All I’m doing today is providing a humane way to carry out capital punishment here in Virginia,” he said. “So we have options. If they do not take it up, I want to be clear, they will be ending capital punishment here in Virginia.” That threat seemed to have the desired effect on some, including the sponsor of the electric-chair bill, Del. Jackson H. Miller (Manassas).
Asked by a reporter whether he wanted to end capital punishment, McAuliffe said no. “While this amendment is not ideal, it will ensure that Virginia continues to carry out the death penalty...,” Miller said in a written statement. “I will review the recommendation, but at this time, I intend to encourage the House to accept the amendments.”
“I did not run on ending capital punishment,” he said. “When I ran for governor, I said I would uphold the law.” Two of the Senate’s most prominent conservatives, Sen. Mark Obenshain (R-Rockingham) and Sen. Richard Black (R-Loudoun), signaled their support.
McAuliffe’s move drew swift criticism from some death-penalty foes, including Virginia’s two Catholic bishops, Francis X. DiLorenzo of Richmond and Paul S. Loverde of Arlington. No fans of the underlying bill, they said they believe he should have vetoed it. The Catholic Church is opposed to the death penalty. “If it means the governor would kill the death penalty completely, then I would vote for the compounding pharmacy,” Black said.
“We are dismayed and deeply disappointed that . . . instead of vetoing expanded use of the electric chair, [the governor] inserted language that would shroud in secrecy the execution process,” the bishops said in a statement, which also criticized McAuliffe, a Catholic, for vetoing legislation related to abortion and gay marriage. But Sen. Thomas A. Garrett Jr. (R-Buckingham), a former prosecutor and death-penalty supporter, said the governor “thumbs his nose at transparency” with the amendment.
“I’d have favored an amendment that reinstated the firing squad over this ridiculous effort to have it both ways,” he said.
Robert Dunham, executive director of the Death Penalty Information Center, said an increasing number of states have been moving to shield lethal drug suppliers from public scrutiny.
While some lower courts have rejected these secrecy arguments, appellate courts have reversed these rulings and not forced them to identify suppliers, he said.
Dunham said Virginia’s law could potentially be challenged by media organizations arguing that it violates the First Amendment, something that has happened in other states, or by inmates arguing that their constitutional rights would be violated if they were unable to find out the identity and safety record of a manufacturer.
“Everything gets challenged,” said Franklin E. Zimring, a law professor at the University of California. “As soon as an execution date is scheduled, challenges will follow as does the day the night.”
The electric chair is already an option in Virginia, where condemned inmates are allowed to choose between it and lethal injection. But Republican lawmakers wanted to remove the choice.
McAuliffe, a Catholic who is personally opposed to the death penalty, said he wasn’t trying to halt executions because they are required under state law. “When I ran for governor, I said I would uphold the law,” he said.
McAuliffe’s proposal sparked blowback from some Democrats.
“Virginia gives more transparency to the purchase of furniture than it does to extinguishing human life,” said state Sen. Scott Surovell (D-Fairfax).
And it also drew swift criticism from Virginia’s two Catholic bishops, Francis X. DiLorenzo of Richmond and Paul S. Loverde of Arlington.
“We are dismayed and deeply disappointed that . . . instead of vetoing expanded use of the electric chair, [the governor] inserted language that would shroud in secrecy the execution process,” the bishops said in a statement.
[Lacking lethal-injection drugs, Va. might turn to the electric chair][Lacking lethal-injection drugs, Va. might turn to the electric chair]
Like many states, Virginia has struggled with how to carry out capital punishment at a time when lethal-injection drugs have become hard to obtain. A European export ban has stopped pharmaceutical firms from sending the drugs to the United States. McAuliffe’s amendment could keep the names of pharmacies private even in the case of lawsuits that could arise from a botched execution.
The legislature will have the opportunity to accept or reject McAuliffe’s amendment when it returns for its veto session April 20. Through a spokesman, House Speaker William J. Howell (R-Stafford), declined to comment on McAuliffe’s amendment.
If Virginia did make the electric chair its default method of execution, the state would become the fourth in since 2014 to formally put alternatives in place in case lethal injection is unavailable. The others are: Tennessee (electric chair); Utah (firing squad); and Oklahoma (nitrogen gas).
Executions and death sentences have both become more rare across the country, dropping last year to the lowest numbers seen in decades.
Virginia has seven men on death row. Dates had been scheduled for two: Ivan Teleguz’s was scheduled for Wednesday and Ricky Gray’s was set for March. But the U.S. Court of Appeals for the 4th Circuit temporarily stayed both.
Virginia last put an inmate to death in October. It executed Alfredo Rolando Prieto — convicted of three murders and linked to six more — by lethal injection, following a late appeal from his attorneys challenging a drug the state had received from Texas.
Texas officials said they provided Virginia last year with pentobarbital legally purchased from a pharmacy, but said that state law prevented them from identifying the supplier of the drugs.