The Washington Post
Virginia Politics
Terry McAuliffe put in awkward
spot on death penalty
By Rachel Weiner February 5
RICHMOND -— State-sponsored executions in Virginia would become shrouded in
unprecedented secrecy under legislation that is advancing with bipartisan support,
including that of Democratic Gov. Terry McAuliffe.
The measure is intended to keep drugs used for lethal injections flowing into Virginia
by shielding manufacturers from public scrutiny and political pressure.
Foreign companies have stopped selling such drugs as a result of pressure from their
governments, leaving some states unable to carry out death sentences and prompting
others to experiment with chemicals that have been blamed for several high-profile
botched executions.
The legislation would prevent the public from scrutinizing most everything to do with
the death penalty in Virginia. The bill states that “all information relating to the
execution process” would be exempt from the state’s open records law. Although the
names and quantities of chemicals used would have to be disclosed, the names of the
companies that sell them and information about buildings and equipment used in the
process would be withheld.
Adding a political twist to the situation, the bill’s chief booster is McAuliffe, a Democrat
who opposes the death penalty but whose support makes passage more likely.
The measure would place Virginia in the vanguard of states trying to continue a
practice that most of their residents still support but that has become increasingly
difficult to administer, for both political and technical reasons. The proposal has been
praised by people who say it would ensure that executions are carried out in the most
humane way possible. But it is denounced by death penalty opponents, as botched
executions have increased scrutiny across the country, including a Supreme Court
review of lethal injections in Oklahoma.
The secrecy provisions, in particular, are a matter of disagreement. Lisa Kinney, a
spokeswoman for the Department of Corrections, said the law would provide “security”
by shielding drug providers from “harassment, threats or danger.” Foes contend that
more scrutiny of state-sponsored executions, not less, is the way to prevent inhumane
deaths.
“This bill is about them trying to hide challenges to them, not about their security,” said
defense attorney Jonathan Sheldon, who has been involved in litigation over lethal
injection. “We don’t need to know the name of who the [executioner] is. ... What we
really want to know is: ‘What is the procedure?’ They’re cloaking this in a false mask of
security.”
Sen. Thomas A. Garrett Jr. (R-Buckingham) said the opponents raised a “legitimate
concern” about secrecy. But he added, “I would say that it’s outweighed by us being
able to carry out sentences that have been prescribed legally and throughout layer upon
layer of due process.”
McAuliffe’s advisers have been surprised by the intensity of opposition, because they
see the legislation as a way to avoid a return to the electric chair as the primary means
of execution in a state where capital punishment remains the law.
McAuliffe spokesman Brian Coy said that although the governor does not support
capital punishment, it is his responsibility to uphold the law. “He is a Catholic,” Coy
said, “so there is a moral component to his position on the issue, but he’s governor, and
he will enforce the law.”
Several other states have enacted laws in recent years to shield the details of executions
from public scrutiny. An Ohio law similar to Virginia’s legislation was enacted late last
year, but it is being challenged in federal court. Ohio has delayed all pending executions
amid concerns about the drugs used.
In 2014, some lawmakers made an unsuccessful push in Virginia to reinstate the
electric chair as the state’s default method of execution should the necessary drugs
become unavailable. McAuliffe did not take a position on that measure.
In neighboring Maryland, then-Gov. Martin O’Malley (D) made abolition of the death
penalty a cornerstone of his legislative agenda. The two states are far apart on this
issue. Maryland has executed five prisoners since the Supreme Court ended an effective
moratorium on the death penalty in 1976; Virginia has executed 110.
Noting all the current legal challenges to execution methods and secrecy, the Virginia
Catholic Conference’s executive director, Jeff Caruso, said, “It seems like we should be
slowing down instead of speeding up.”
The politics of the death penalty began to change in Virginia in 2005, when Timothy M.
Kaine (D), a death-penalty opponent who had defended death-row inmates pro bono,
was elected governor. Kaine’s Republican opponent, Jerry Kilgore, ran a TV ad saying
that Kaine wouldn’t have supported executing Adolf Hitler. Kaine, a Catholic,
responded with an ad declaring that his faith led him to oppose the death penalty but
that he would uphold the state law.
“Kaine demonstrated that if you articulate your position in a thoughtful and consistent
manner, then people will respect that position,” said J. Tucker Martin, Kilgore’s
spokesman in that race and later an aide to then-Gov. Robert F. McDonnell (R). Still,
Martin said, he believes that Virginia remains “a pretty tough-on-crime state.”
There were 11 executions on Kaine’s watch, despite his beliefs.
A 2013 University of Mary Washington poll found that 65 percent of Virginia adults
believe that the state should “keep” the death penalty for first-degree murder.
“I continue to believe the majority of Virginians support the death penalty,” said
Secretary of Public Safety Brian Moran, who testified in favor of this year’s lethal
injection bill. “The death penalty exists in the commonwealth, and we're merely trying
to ensure that those sentenced to death are able to have the choice of lethal injection.”
When McAuliffe ran unsuccessfully for governor in 2009, according to news reports, he
supported capital punishment. McAuliffe’s office said this week that his position has
always been that he would not let his personal feelings on the issue keep him from
performing his duties as governor.
The death penalty still has majority backing nationally as well, according to a 2014
Washington Post poll, although support is slowly falling. Among Democrats, however, a
slim majority is opposed, and the same is true for non-white respondents. And if lethal
injection is unavailable, overall support in the poll dips to 48 percent
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Numbers of executions and death sentences have declined along with popular support
in Virginia and nationally. There are currently eight inmates on death row in Virginia,
fewer than in all but seven other states that practice capital punishment. Virginia, once
second only to Texas in executions, has fallen behind Oklahoma and has executed fewer
people than Florida every year since 2011.
Senate Minority Leader Richard L. Saslaw (D-Fairfax), who sponsored the bill on
behalf of McAuliffe, suggested that death penalty opponents are hoping for a return to
the electric chair to weaken support for capital punishment. Their argument, he said,
was that “if you make the death penalty too humane ... then people will think there’s
nothing wrong with the death penalty.”
Del. Scott A. Surovell (D-Fairfax) said that he suspected that the Department of
Corrections was seeking additional secrecy to prevent the kind of scrutiny that occurred
last year.
Last year, soon after the department told lawmakers that it lacked a necessary lethal-
injection drug, the Richmond Times-Dispatch reported that an alternative had been
purchased and stockpiled. Then, the department announced that the new drug had
been approved for use. But the drug, midazolam, was involved in prolonged executions
under scrutiny by the Supreme Court.
The Department of Corrections “got egg on their face,” Surovell said. “They’re trying to
make all these documents secret so they don’t get caught again.”
Even without the legislation, obtaining records related to executions is far from easy.
Surovell is engaged in a legal battle with the Department of Corrections over its refusal
to reveal lethal-injection protocols, citing security concerns. The state Supreme Court
will hear that case.
Laura Vozzella contributed to this report.
Read more:
Five Virginia death row inmates challenge solitary confinement
Ex-Virginia executioner becomes opponent of death penalty
Rachel Weiner covers local politics for The Washington Post.
