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Talking Points Against SB 1393 by Corinna Lain
It raises serious 8 Amendment concems.
The Supreme Court in Baze v. Rees (2008) held that lethal injection protocols cannot
pose a substantial risk of unnecessary pain.
Baze is a ruling about what sorts of drugs the condemned can be lethally injected with—
and to access that right, the condemned have to know something about what's in that
syringe. Otherwise, how can they make an 8 Am claim under Baze? They don’t have
the information to know whether they have a claim to make.
SB 1393 explicitly states that the condemned cannot know “the name of the materials or
components used” to compound LI drugs— so 1393 is explicit in hiding what's in the
syringe. That's problem number 1.
Problem number 2 is that it also hides the name of compounding pharmacies supplying
the drug, so there’s no way of knowing other information about the drug— what's the
expiration date? What's the potency? Was it tested for contaminants? Was the
compounding pharmacy even licensed to compound that particular drug?
Just yesterday, Feb 8, the ABA passed resolution 108B, which calls for disclosure to the
public of “details about any drugs to be used, including the names, manufacturers or
suppliers, doses, expiration date(s), and testing results concerning use of the drugs.”
And its rationale was in large part a view that the Eighth Amendment requires it.
Here’s the report, it’s 18 pages long & looks at the issue from every side:
http://www.americanbar.orq/news/reporter_resources/midyear-meeting-2015/house-of-
delegates-resolutions/108b.html
BTW I've heard lots of hyperbole about the name of the executioner always being secret.
That misses the point. The name of the executioner isn’t a constitutional matter; the
contents of the syringe are.
. The constitutional issues are serious enough that even death penalty supporters should
steer clear of this bill— it promises to bring a de facto moratorium to Virginia executions,
like what just happened in Ohio last week (the governor put all executions on hold until
early 2016).
. Policy considerations:
Y ou ought to worry about the secrecy provision for compounding pharmacies, they’ re
often sketch. They aren’t regulated by the FDA, just state, and accreditation isn’t
mandatory like with regular pharmacies.
In 2012, the botched execution of Eric Robert in South Dakota was later traced back to a
contaminated lethal injection drug produced by a compounding pharmacy.
http://dev.ekklesia.co.uk/node/17185
Also in 2012— and completely unrelated to LI drugs— a compounding pharmacy’s
contaminated steroid was responsible for 64 deaths nationwide, and 100s of people
seriously ill. http://Avww.nytimes.com/2014/12/18/us/new-england-compounding-center-
steroid-meningitis-arrests.html?_r=0
So it’s actually pretty important to know where the drugs are coming from; the harm is
real, not just hypothetical.
Virginia is trying out new, untested combinations of LI drugs (the DOC just switched to a
new protocol and has complete discretion in that regard, there’s no public oversight, no
notice & comment process at all) & is simultaneously moving to less reputable sources—
and now it wants to hide its process so nobody can see?
It’s the essence of bad government to enshroud the state in secrecy at its most powerful
moment— when it uses its sovereignty to take one of its own citizens’ lives.
And for what? That's the kicker. Every bill should start with need— what’s the need for
this? We've yet to see a single execution on hold because DOC can’t get the drugs (in
fact DOC doesn’t deny it has the drugs to execute with now— and we only have 8 people
on death row to start with).
This is really about protecting sources. Compounding pharmacies don’t want it known
that they'll supply LI drugs, they don’t want bad publicity. So the state has an interest in
protecting unsavory trades (though we've yet to see any bad publicity either— nobody
cared, until this bill came along). But that has to be balanced against the condemned’s 8"
Amendment rights and also the public interest in its government affairs being conducted
in an open, transparent manner.
One last point. I’ve heard a lot about the gruesome crimes of the condemned— the
implication being it’s crazy to worry about what's in the syringe given what these people
did to their victims.
That narrative needs to be answered. This is not about getting even— it can’t be. If it
were, well then we would just torture the bastards. Why don’t we torture torturers? Why
don’t we rape rapists?
Because a civilized society is better than the worst of its members. It has to be. We can’t
get even with these people, because a civilized society can’t stoop that low. So let’s stop
using the condemned’s crimes as the measure of what process is due. It’s a false
comparison, a nonstarter.
