Against Death Drug Secrecy in Virginia

Earlier today the Virginia Senate passed a bill (SB 1393) to hide from public view both the drugs used to execute convicted capital criminals in the Commonwealth and those who supply these death-dealing drugs. The best explanation behind a bill like this is to shield Virginia's death-drug suppliers from criticism. Virginia apparently intends to rely on compounding pharmacies that are only willing to supply death-penalty drugs as long as nobody knows who these pharmacies are and what they are doing. 

This bill does nothing to make death-penalty administration easier any time soon. If enacted, its main effect in the next months and years will likely be to wrap officials up in new constitutional litigation in which expenditures of time and money are the only guaranteed outcomes. Nor would this legislation advance any valid purpose of criminal punishment. Virginia has death-penalty drugs on hand. Should this supply run out and not be replenished (however unlikely), electrocution remains available under state law.

In truth, this legislation is not really about making executions happen. It is about insulating execution administration from criticism. That is not a good reason to pass a law like this. Although the death penalty is controversial, the right approach to controversy in a free society is not to hide what government does when it kills in the name of the law.

Self-government in a regime of ordered liberty requires critical review of the government's actions, including its administration of the ultimate penalty for criminal wrongdoing. As James Madison wrote in the Virginia Resolutions of 1798, the "right of freely examining public characters and measures, and of free communication among the people thereon, ... has ever been justly deemed, the only effectual guardian of every other right." 

If bad publicity is an undesired effect of being a death-drug supplier for the state, the solution is not to supply a shield from that publicity. With no disrespect to P.T. Barnum, we should all appreciate that, at least with respect to lethal pharmaceuticals, there is such a thing bad publicity, and that is good.

It would be a different matter--one calling for a different solution--if drug-compounding pharmacies were to be illegally threatened or intimidated. But that is not a real problem right now. The law already protects against threats and intimidation anyway, while there are (properly) not laws against being criticized. As Justice Scalia has written (in a distinct but related context), "[t]here are laws against threats and intimidation; [but] harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance." 

Among those testifying against this bill yesterday were my Richmond Law colleague Corinna Barrett Lain and Virginia Catholic Conference Executive Director Jeff Caruso. When I learned that the bill had barely passed out of committee on a 7-6 vote, I had hopes that it might fail in the Senate as a whole. But instead it passed by a 23-14 vote. Voting in favor were 19 Republicans and 4 Democrats; opposing were 13 Democrats and 1 Republican. Interestingly, 3 Republicans had voted against the bill in committee. When the whole body voted, though, one Republican flipped (Sen. McDougle) and another abstained (Sen. Stuart), leaving just one to vote against (Sen. Stanley). Meanwhile, this Republican-supported bill is sponsored by a Democratic senator (Dick Saslaw) and championed by a Democratic governor (Terry McAuliffe).

It looks like the only off-ramp from this bill becoming law is the Republican-controlled General Assembly. Will they do the bidding of Virginia's drug suppliers and pass SB 1393? Or will they dig deeper instead and do the right thing by declining to drape a veil of secrecy over lethal injections in Virginia?