RICHMOND — Several Virginia Republican leaders said Monday they would join Gov. Terry McAuliffe in his effort to use secret pharmacies to supply the drugs the state needs to carry out death sentences.
Although lethal injection remains the primary method of execution in this country, a European ban has stopped pharmaceutical firms from exporting the drugs to the United States and pharmacies here face political pressure from opponents of capital punishment.
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.
But McAuliffe’s plan could throw into question the future of executions in Virginia. Arkansas, Missouri and Ohio are among the 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 break, the legal challenge has delayed several lethal injections scheduled to take place last fall and winter.
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 Supreme Court reinstated the death penalty in 1976 — ranking it third behind Texas and Oklahoma for the state with the most executions.
McAuliffe, a Catholic 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 a “reprehensible” method of execution.
“We take human beings, we strap them into a chair, and then we flood their bodies with 1,800 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.”
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 executions and forcing conservative Republicans to choose between an enforceable death penalty and government transparency.
McAuliffe said that 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 limbo.
“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.”
That threat seemed to have the desired effect on some, including the sponsor of the electric-chair bill, Del. Jackson H. Miller (Manassas).
“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.”
Two of the Senate’s most prominent conservatives, Sens. Mark Obenshain (R-Rockingham) and Richard Black (R-Loudoun), signaled their support.
“If it means the governor would kill the death penalty completely, then I would vote for the compounding pharmacy,” Black said.
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-injection drug suppliers from public scrutiny.
Although some lower courts have rejected the secrecy arguments, appellate courts have reversed the rulings and not forced states 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 name and safety record of a manufacturer.
“Everything gets challenged,” said Franklin E. Zimring, a law professor at the University of California at Berkeley. “As soon as an execution date is scheduled, challenges will follow as does the day the night.”
Condemned inmates in Virginia are allowed to choose between the electric chair and lethal injection. Republican lawmakers wanted to eliminate the choice.
McAuliffe said he wasn’t trying to halt executions. “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,” Sen. Scott Surovell (D-Fairfax) said.
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.
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 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. Execution 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, after 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.
mark.berman@washpost.com
