Death penalty drug secrecy bill defeated in Virginia

I'm happy to report that the Virginia House of Delegates a few hours ago voted down a proposed death penalty drug secrecy bill (SB 1393). I posted on MOJ a couple of weeks ago in opposition to this bill, and subsequently co-authored an op-ed with my colleague Corinna Lain that built on the MOJ post. I then testified before a House of Delegates subcommittee and committee. All of this seemed to be of little effect (as the subcommittee and committee vote counts show). But the tide somehow turned, and at least some of this must be due to persistent lobbying by the Virginia Catholic Conference, the Virginia ACLU, and Virginians for Alternatives to the Death Penalty, whom Corinna and I had been working with, as well as opposition by the Virginia Press Association and other open-government advocates.  It is impossible to know what would have happened without any push from all these groups. And it is nice to think that a bill so evidently flawed would have collapsed of its own weight when delegates were free to vote their conscience without regard to party discipline (as they were). But it is gratifying to see the outcome one has been pushing for reflected in the final vote, especially when the outcome comes as a surprise. (To show how surprising the outcome is, I've included below the draft post that I wrote this morning but was unable to finish before other matters demanded my attention. It seems my draft observations about the distorting effects of death-penalty politics were not across-the-board accurate. Happy to be proven wrong.)

[OLD DRAFT]

[I posted a couple of weeks ago against a death penalty drug secrecy bill (SB 1393) that had recently passed the Virginia Senate. Since then, I've co-authored an op-ed with my colleague Corinna Lain and testified before a House of Delegates subcommittee and committee (both times to little effect, as the linked vote counts show). The House Courts of Justice Committee has proposed an amendment to make the bill's secrecy provisions less bad through the authorization of disclosure and use under seal in criminal proceedings. But the bill remains deeply flawed as it proceeds through the House of Delegates.]

[The process of opposing this bill in person before some of the legislators who are to vote for it has been educational. And while I have a renewed appreciation for the practical and political difficulties faced by legislators, some of the procedural aspects have made me appreciate the judicial process even more. When you appear in court, the judge is supposed to have read your written submissions (if any) ahead of time and must consider your legal arguments for their potentially binding effect. Legislators caught in the crush of bills do not have to read anything ahead of time and are unlikely to have deeply considered details of proposed legislation unless some special circumstance prevails. Although they should consider constitutional arguments and other legal arguments about problems with proposed legislation, the incentives are aligned to allow them to kick those cans down the road.]

[A pithy summary of the principled and pragmatic arguments against Virginia's lethal injection secrecy bill is in the Virginia Catholic Conference's Top Ten Reasons to Slow Down SB 1393. Given that this is a bill proposed by a Democrat Senator and supported by a Democrat Governor, one might think there is political clearance for Republicans to vote against it on government transparency grounds, joining those--mostly Democrats--who oppose it because they oppose the death penalty. But that is now how the voting has played out so far. Senators and Delegates have largely voted as if this bill were simply about whether one supports the death penalty or not. It is hard not to conclude that the legislators are worried about an oversimplified bullet-point on a primary or general election opponent's mailer.]

[And this brings me to Professor George's recent post supporting death penalty repeal in Kansas. To the arguments adduced in that letter, one can add the tendency of death-penalty politics to exercise a distorting influence on other areas of the law. As Virginia's SB 1393 shows, legislators who would otherwise be against government secrecy as a matter of principle are willing to abide government secrecy in order to prop up the death penalty.]