4/21/2016 Virginia legislature approves plan to buy execution drugs from secret pharmacies - The Washington Post
Virginia legislature
approves plan to buy
execution drugs from
secret pharmacies
Virginia Attorney General Mark R. Herring (D). (Jay
Paul/Getty Images)
By Laura Vozzella April 20 at 6:03 PM
RICHMOND — Virginia’s House and Senate on
Wednesday accepted Gov. Terry McAuliffe’s plan
to hire pharmacies to secretly supply the state with
execution drugs, acting one day after the state’s
attorney general signed off on the idea.
Virginia joins Arkansas, Missouri and Ohio as
states that have placed similar shields over the
pharmacies that produce lethal drugs and have
4/21/2016 Virginia legislature approves plan to buy execution drugs from secret pharmacies - The Washington Post
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.
The night before the General Assembly's one-day
veto session, Attorney General Mark R. Herring
(D) issued a legal opinion saying that the plan
would not violate state or federal laws governing
controlled substances or the practice of medicine
and pharmacy.
McAuliffe (D), who opposes capital punishment
but has vowed to support it as a matter of Virginia
law, has said the state would not be able to carry
out the death penalty if it does not come up with a
way to obtain increasingly scarce execution drugs.
The Senate voted, 22 to 16, to back the governor’s
plan, with Sen. Minority Leader Richard L. Saslaw
(D-Fairfax) arguing that complaints about secrecy
had been overblown. Had the federal government
decided to put Oklahoma City bomber Timothy
McVeigh to death the same way he killed his
victims, “do you honestly think any of your
constituents would care where we bought the
dynamite?” Saslaw said.
The House’s approval came with dramatic flip-
flops. Conservative skeptics of government secrecy
initially teamed with House Democrats to reject
f the governor’s amendments by a vote of 51 to 47.
4/21/2016 Virginia legislature approves plan to buy execution drugs from secret pharmacies - The Washington Post
But after a few minutes of arm-twisting by
Republican leaders, and the abrupt exit of one
GOP delegate, the House reconsidered the vote.
The second time, the measure passed, 59 to 40.
“Tt was important to preserve capital punishment,”
said Matthew Moran, spokesman for House
Speaker William J. Howell (R-Stafford), one of 13
Republicans who changed their votes to “yes.”
Del. Marcus B. Simon (D-Fairfax), who attempted
arcane parliamentary maneuvers to derail the
plan, later complained that Republican leaders had
whipped members into line on a matter that he
said should be left to personal conscience.
“The governor didn’t whip a single vote on this,
unlike what I just saw across the aisle,” said
Simon, who also questioned the notion that the
state could not execute prisoners without the
measure. “Nothing’s stopping the Department of
Corrections from investigating new drug protocols.
They just can’t do it in secret.”
4/21/2016
Virginia legislature approves plan to buy execution drugs from secret pharmacies - The Washington Post
Herring’s legal opinion came a little more than a
week after McAuliffe drastically amended a
Republican bill intended to let the state use the
electric chair when it cannot obtain lethal-
injection drugs. The drugs have become hard to
obtain amid a European export ban and public
pressure on U.S. pharmaceutical companies not to
supply them.
McAuliffe’s amendment will scrap that approach
and instead allow the state to specially order the
drugs from compounding pharmacies, whose
identities would be kept secret to shield them from
political pressure.
[McAuliffe guts Virginia’s electric-chair bill]
The plan has been controversial not only among
opponents of the death penalty, but also among
conservative and liberal critics of government
secrecy.
“The governor’s amendments will keep secret the
manufacturers of drugs used to kill Virginia’s
death-row inmates by lethal injection, as well as
the chemical nature of those drugs,” said Claire
Guthrie Gastafiaga, executive director of the
American Civil Liberties Union of Virginia.
“Injecting secrecy into the process will authorize
Virginia to use new, untested, unregulated,
undisclosed drugs on human beings against their
will.”
4/21/2016
Virginia legislature approves plan to buy execution drugs from secret pharmacies - The Washington Post
McAuliffe has said the state would not have a way
to execute death-row inmates without the
pharmacy plan and its secrecy provisions.
Virginia inmates facing the death penalty can
choose between the electric chair and lethal -
injection. Del. Jackson H. Miller (R-Manassas)
sponsored a bill this year to make the electric chair
the default method of execution when the state
cannot obtain lethal-injection drugs.
In amending Miller’s bill, McAuliffe said he was
trying to find a way to avoid the use of the electric
chair, which he called a “reprehensible” method of
execution.
Herring, who is running for reelection in 2017,
passed judgment on the legality of the plan but did
not weigh in on its merits.
His opinion disappointed some Democrats
opposed to capital punishment. But it pleased
some Republicans, who are split over the secrecy
provisions but eager to get the attorney general to
4/21/2016 Virginia legislature approves plan to buy execution drugs from secret pharmacies - The Washington Post
weigh in on an issue unlikely to be popular with
the liberal Democratic base. Herring supports
capital punishment but is better known for
advancing liberal causes such as gay rights,
abortion access and immigration.
“The opinion is a strong legal endorsement of
capital punishment in Virginia,” Moran said in an
email. “The attorney general’s opinion will be
helpful as the House considers the governor’s
amendment Wednesday.”
Two opponents of the death penalty, Simon and
state Sen. Scott A. Surovell (D-Fairfax), also jointly
sought Herring’s opinion last week. Miller also
separately asked for Herring’s view last week,
although he said he was inclined to support
McAuliffe’s amendment. Miller had asked Herring
to address questions that the state’s pharmacy
chief had privately raised in emails in 2014.
[Virginia’s pharmacy chief questioned legality of
special-ordering execution drugs]
Caroline D. Juran, executive director of the
Virginia Board of Pharmacy, had wondered
whether such a plan might violate laws requiring
that drugs be dispensed only with a valid
prescription and only for medicinal or therapeutic
purposes. She also questioned whether the secrecy
provisions could prevent authorities from
investigating a pharmacy in the event of a botched
execution.
4/21/2016 Virginia legislature approves plan to buy execution drugs from secret pharmacies - The Washington Post
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Herring said that the federal Food and Drug
Administration “has concluded that it lacks clear
regulatory authority over the use of drugs for
purposes of conducting executions, and courts will
likely be constrained to defer to the FDA’s
reasonable construction.” He also said that
ordinary prescription requirements would not
apply to drugs obtained for executions.
Surovell and Simon raised some of the same
issues, and they also questioned whether the
secrecy surrounding the drugs would violate the
constitutional right of death-row inmates to gather
information about their pending executions.
“Upon a showing of good cause, a judge presiding
over either civil proceeding has the authority and
discretion to fashion appropriate safeguards to
allow for access to relevant information by party
4/21/2016
Virginia legislature approves plan to buy execution drugs from secret pharmacies - The Washington Post
litigants,” Herring wrote.
Surovell and Simon were not swayed by Herring’s
opinion.
“The attorney general’s office has been guiding the
Department of Corrections conduct for decades
and if he had opined differently, he would expose
the state and multiple employees to significant
criminal and civil liability,” Surovell said.
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Laura Vozzella covers Virginia politics for The Washington
Post.
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