The last high-profile attempt to learn the source of Virginia’s execution drugs ended in a black bar. In 2016, the Associated Press filed a Freedom of Information Act request to learn which pharmacy had provided the state’s Department of Corrections with materials for its next two executions. The department provided the receipts for the drugs, but redacted the name of the pharmacy.
It was legal under a law passed the same year, which enabled the state to purchase drugs from compounding pharmacies instead of relying on pharmaceutical companies. The legislation, proposed by then-Gov. Terry McAuliffe, also allowed the Department of Corrections to hide the names of vendors.
“Frankly, I’ve been concerned about this issue since the code was changed,” said Sen. John Bell, D-Loudoun. One of his bills this session aims to re-introduce transparency to the execution process, declassifying the sources of lethal injection drugs and ensuring that the names of facilities are subject to FOIA requests.
“If there are drugs that are manufactured to kill humans, I think people have the right to know about those drugs,” Bell continued. “This is not a bill intended to make it impossible to carry out lethal executions. This is a bill for safety and transparency.”
The legislation is being considered amidst a national discussion over the hazards and morality of lethal injection and other forms of capital punishment. Bell said he was motivated partially by concerns that legal execution drugs could be diverted from the corrections system without proper oversight. In 2011, Georgia sold imported sodium thiopental to Kentucky, sparking worries from legal experts that the drug — purchased from a private pharmacy — could find its way to the mainstream market.
But there are also concerns about the quality of the compounds used to carry out executions. Large pharmaceutical companies, which are subject to regulation by the U.S. Food and Drug Administration, have largely stopped selling life-ending drugs to states with the death penalty. Those include the drugs on which Virginia has historically relied for executions, according to the AP: pentobarbital or midazolam (both sedatives), rocuronium bromide (used to stop breathing), and potassium chloride (used to stop the heart).
That’s narrowed down the list of providers for lethal injections. Virginia is one of many states to turn to compounding pharmacies — companies that blend and alter drugs — as a source.
Bell said the facilities often produce specialty medications or drugs for rare conditions, but can also provide chemicals for executions.
“If you can’t buy these drugs off the market, you have to get them custom-made,” he said. “And that’s forced the Department of Corrections, if they need to carry out a sentence, to get a compounding pharmacy who can make them.”
While compounding pharmacies are licensed and overseen by the state’s Board of Pharmacy, they aren’t always subject to the same FDA regulations as pharmaceutical manufacturers. Unless a compounder registers as an outsourcing facility, the FDA doesn’t verify the safety or effectiveness of their products.
That’s led to notable failures in safety, for both mainstream consumers and inmates. The FDA has reported “troubling conditions” at compounding facilities, including pet beds near compounding areas and toaster ovens used for sterilization. In 2012, more than 60 people died after a compounding pharmacy in Massachusetts shipped fungus-infected drugs that were injected into the spines and joints of roughly 14,000 people.
Virginia’s shield law makes it impossible to know whether the state sources lethal injection drugs from reliable sources. But in Texas, another death penalty state, a 2018 investigation found that officials purchased drugs from a compounding pharmacy with 48 safety violations over an eight-year period.
Virginia’s Board of Pharmacy maintains a database of registered compounding pharmacies and outsourcing facilities, according to Diane Powers, communications director for the state’s Department of Health Professions. License verification, and disciplinary actions, are publicly available, but navigating a search is difficult without knowing the name or license number of a facility.
Problems with drug safety have driven appeals from inmates scheduled to receive lethal injections. Convicted mass murderer Ricky Gray, one of the last prisoners to be executed in Virginia, unsuccessfully petitioned for a stay of execution in 2016, arguing that the state’s three-drug cocktail would “chemically torture [him] to death.” An independent pathologist later reported that something went wrong during Gray’s execution, saying the autopsy indicated an acute pulmonary edema that likely felt similar to drowning.
Bell said he had his own concerns about sourcing. His bill would also require the Board of Pharmacy to submit an annual report to the General Assembly’s health committees with the number of compounding pharmacies or outsourcing facilities licensed by the state and the names of any companies cited for violations.
“That way, we would know who the bad actors are and can make sure we’re not supplying from these companies,” he said. “We want them to tell us which compounding facilities aren’t following the rules.”
His bill narrowly passed the Senate in a 21-19 party line vote on Feb. 4 and was reported from a House committee earlier this week. But some lawmakers have expressed similar concerns to McAuliffe’s in 2016, arguing that compounding pharmacies would refuse to supply the drugs if their identities were subject to FOIAs.
“It had been a long-standing policy by the Department of Corrections,” Del. Robert Orrock, R-Caroline, said during a Tuesday committee hearing. “Their concern was that by having providers of the chemicals subject to FOIA, that would make it very problematic for them being able to procure the drugs from any source.”
Lisa Kinney, communications director for the VADOC, wrote in an email that the department does not have a position on the bill. Bell said that other states have still been able to carry out executions after their shield laws were weakened or repealed.
That includes Missouri, which was forced to reveal the names of two pharmacies after losing a lawsuit filed by a group of media outlets.
Since 1976, Virginia has carried out the second-highest number of executions in the country, second only to Texas, according to the nonprofit Death Penalty Information Center. But the state hasn’t executed an inmate since 2017, when William Morva was put to death for killing an unarmed security guard and deputy sheriff in Montgomery County.
A bill to abolish the death penalty failed in early February after a Senate panel voted to defer it until next year.