by Frank Knaack, Director of Public Policy and Communications
Death PenaltySecret and human experimentation are two concepts that should never intersect with Virginia’s capital punishment system. This should be common sense. We may disagree on whether the death penalty is a good thing (we think it isn’t). But, we should all agree that if Virginia has a capital punishment system then the process should be transparent and humane. Unfortunately, some in the General Assembly seem to disagree. If these legislators get their way, Virginia’s capital punishment system would move into a world where human experimentation and secrecy become the norm.
Senate Bill 1393 would empower the Department of Corrections to contract with pharmacies to make up drugs for use in execution by lethal injection. The bill would also shield from disclosure under Virginia’s Freedom of Information Act the identity of the entity compounding the drugs and all documents related to the execution process. Finally, the bill would prohibit the courts from considering any evidence relating to the execution process before they find “good cause” to admit evidence relating to the execution process.
Why are some legislators pushing this bill? They argue that it’s necessary because Virginia is having trouble acquiring the drugs it needs to execute people by lethal injection. This is true, in part because of the European Union’s stance against the death penalty (and its restrictions on the export of certain drugs known to be used as part of execution procedures in the US). Because of this drug shortage, some states now rely on untested drug cocktails to carry out their executions, engaging in what can only be described as medical experimentation on human beings. While lethal injection is sold to the public as a quick and painless method for executing a person – more humane than the electric chair (with its associated smoke rising from the head and the odor of burning flesh) – a series of recent botched executions by lethal injection show that government assurances are false. Hence, the Commonwealth’s desire for secrecy.
Assuming the government wants to keep lethal injection going, the logical response to a botched execution should be to, in a transparent way, figure out what went wrong and make sure it never happens again. SB 1393 would take Virginia in the opposite direction. This is not a conspiracy theory – it is the plain language of the bill. As the bill states, “[a]ll information relating to the execution process … shall be exempt from the Freedom of Information Act and shall not be subject to discovery or introduction as evidence in any civil proceeding unless good cause is shown.” What this bill says is that executing people is the priority, regardless of whether it requires inhumane methods or secret government action. The bill both seeks to cloak all information about executions in secrecy so that the state can’t be held accountable for engaging in this kind of cruel and unusual experiment and sets up a barrier to any civil suit that would hold the state accountable for a botched execution. This is unacceptable government behavior under any circumstance, particularly when it’s related to the government’s power to kill in our name.
This bill undermines basic American principals like government transparency and accountability (as well as a general abhorrence toward  involuntary human experimentation). It also compounds rather than addresses the fact that currently we have a capital punishment system that isn’t fair. More than ten years ago, the ACLU of Virginia issued a report highlighting problems with the implementation of our death penalty. In August 2013 the American Bar Association published a report that cast further doubt on the ability of Virginia to ensure fair and accurate application of its death penalty. The report found “several areas of concern” throughout Virginia’s death penalty process. These flaws go to the heart of the process and, unfixed, contribute to the likelihood that an innocent or intellectually disabled person might be put to death. Until we ensure a fair and accurate process, we should put on hold any discussion over how we should kill those on Virginia’s death row, especially when the proposal includes secrecy and human experimentation.
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