Reporters Committee urges Virginia legislature to reject execution secrecy bill

The Reporters Committee for Freedom of the Press has sent a letter to the Virginia House of Delegates urging them to reject Senate Bill 1393, which would exempt crucial information on the drugs used in executions, as well as the pharmacies that produce them and any investigations into those pharmacies, from the Virginia Freedom of Information Act (Virginia FOIA). The bill passed the Virginia Senate Tuesday by a vote of 23 to 14. It comes at a time when many other states, worried about the diminishing supply of drugs for lethal injections, have passed similar laws seeking to shroud their sources for such drugs in secrecy.

In its current form, the bill shields key information related to the drugs used in executions and their sources from the public. Specifically, it would make secret “the identities of persons or entities engaged to compound drug products for use in the execution, the identities of persons or entities engaged to manufacture or supply the materials used to compound drug products for use in the execution, [and] the name of the materials or components used to compound drug products for use in the execution . . . .”

Substantial concerns about the drugs used in executions have been raised in recent years, especially in the wake of numerous botched executions across the nation. Ohio recently decided to postpone all executions for the rest of the year after concerns were raised about the drugs used in some of its executions. And just last month, the Supreme Court decided to hear a case challenging the constitutionality of the drugs used in Oklahoma’s executions. The case will examine whether midazolam effectively renders a condemned person unconscious before other drugs are administered to kill them. The Court has stayed three pending executions in Oklahoma while it hears the case.

Additional questions have been raised about the sources of lethal injection drugs. Due to a dwindling supply, many states have turned to lightly-regulated compounding pharmacies to fulfill their needs for drugs, often promising anonymity in exchange for their services. But questions remain about the quality and efficacy of drugs from such compounding pharmacies. For example, in Missouri it has been determined that “the quality of compounded drugs, unlike manufactured drugs, varies from batch to batch. Inspections by the Missouri Board of Pharmacy have found that about one out of every five drugs made by compounding pharmacies fails to meet standards.”

The Reporters Committee, along with the Missouri ACLU and a reporter from St. Louis Public Radio, is currently litigating a case against Missouri to gain access to public records about the pharmacies and laboratories that produce and test their execution drugs.

The letter from the Reporters Committee to the Virginia House of Delegates argues that exempting information on execution drugs from the Virginia FOIA “will 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.” It notes that the entities that produce the supplies used in executions have, historically, not been shielded from the public. For example, when hangings were the dominate form of executions, it was common for the manufacturer of the rope to be public knowledge, and even reported on by the press.

In addition to hiding information about execution drugs and their sources, Senate Bill 1393 also has additional language that would make secret any government investigations into pharmacies that produce the drugs. The bill states that “Any documents or information related to any such inspection or investigation conducted by the Board of Pharmacy shall be confidential, shall be exempt from the Freedom of Information Act . . . .”

The Reporters Committee’s letter argues that this provision “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.” Given the questions that have been raised about the quality of drugs from compounding pharmacies, it seems particularly perverse that the public would not have access to the results of an investigation if it determined the source of execution drugs was substandard.

The Virginia House of Delegates is expected to take up the Senate bill soon. Despite his opposition to the death penalty, the execution secrecy bill has been supported by Governor Terry McAuliffe.