But the Virginia Department of Corrections recently denied a Freedom of Information Act request filed by the Mercury for the names of its suppliers over the last decade, noting that the new law doesn’t apply to contracts that were already signed by the state.
“Specifically, the 2020 amendment provides that the identity of an outsourcing facility ‘that enters into a contract’ is no longer confidential or exempt from the Freedom of Information Act,” wrote Ryan McCord, the department’s legal compliance manager, in a response letter last week. “The General Assembly expressly chose the word ‘enters,’ rather than ‘entered into,’ or ‘has entered into,’ indicating that the law does not apply to contracts executed prior to the statutory amendment.”
Sen. John Bell, D-Loudoun, who introduced the bill during the 2020 session, said Monday that the department’s interpretation aligned with his own intentions for the bill. “The reason why is because we were worried about some legal contracting issues we’d have with agreements that have been made prior to this,” he added. “We didn’t want to cause legal problems for the commonwealth.”
Bell said that future purchases would be subject to the new discoverability law and suggested that existing contracts between VDOC and drug suppliers should be revisited in light of the legislative changes. Currently, though, it’s not clear how many purchasing agreements are still in effect.
“VDOC has not entered into any contracts with lethal injection drug manufacturers, suppliers, or compounders since the passage of the statutory amendments,” McCord wrote. At least one compounding pharmacy ended its agreement with the state on May 5 — less than a month after the new law was signed — according to a letter included as part of the department’s response to the Mercury’s FOIA request. The letter was sent to VDOC Director Harold Clarke by the company’s lawyer, McCord wrote, but the department redacted both the name of the pharmacy and the attorney.
VDOC spokesman Greg Carter did not immediately clarify whether the department has any other outstanding contracts with drug suppliers.
The interpretation of the law maintains the status quo of secrecy surrounding the state’s execution process. In 2016, VDOC redacted the identity of the compounding pharmacy that provided the department with drugs for its next two executions (the state spent $66,000 — roughly 63 times the previous year’s price, the AP reported).
The same year, convicted mass murderer Ricky Gray — one of the last prisoners to be executed in Virginia — unsuccessfully petitioned for a stay of execution, arguing that the state’s three-drug protocol 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.
Virginia, like other states, has turned to compounding pharmacies as large FDA-regulated manufacturers have made conscious efforts to prevent their products from being used for capital punishment. Smaller compounding facilities can blend and alter drugs, but generally aren’t subject to the same federal regulations as pharmaceutical manufacturers. Rob Dunham, executive director of the nonprofit Death Penalty Information Center, said Monday that it’s led to wide variability in the quality and purity of drugs from those sources.
In 2018, Buzzfeed reported that Missouri, which spent years fighting lawsuits against its secretive execution laws, sourced its lethal injection drugs from a compounding pharmacy with a history of significant safety violations. The same was true in Texas. But Virginia’s current protections make it impossible to know whether the state sources its drugs from reputable sources.
“Secrecy is less about protecting the identity of the supplier from the public and more about protecting the state and the supplier from the law,” Dunham said. A recent court order revealed that a small Nebraska pharmacy provided the state’s Department of Corrections with lethal execution drugs made by major manufacturers that opposed their use in capital punishment. One company, Fresenius Kabi, even sued to try to prevent the state from using its products, arguing that they “could only have been obtained through improper or illegal means.”
Dunham, a former capital litigator who represented death row inmates in Pennsylvania, said the only real way to challenge VDOC’s interpretation of the new law was in court. It’s a process that multiple media outlets have pursued in an effort to bring transparency to Virginia’s execution process. In 2019, four news organizations filed a lawsuit alleging that the state was restricting their First Amendment right to view executions in their entirety. That case was tossed out by a federal judge in June.
The lack of transparency comes amid renewed calls for Virginia to abolish the death penalty completely as the state grapples with its Confederate legacy and nationwide calls for criminal justice reform. Virginia is the country’s historical leader in executions and has killed 113 inmates since 1979, when the U.S. Supreme Court reinstated capital punishment after a 12-year moratorium. The two remaining inmates on the state’s death row are Black men. Dunham said Virginia’s criminal code is marked by an “overtly racist legal structure,” including discriminatory application of the death penalty.
“In antebellum Virginia, different crimes were punishable by death if you were Black than if you were White,” he added. According to one article in the American Bar Association’s ‘Human Rights Magazine,’ “free African Americans (but not whites) could get the death penalty for rape, attempted rape, kidnapping a woman, and aggravated assault— all provided the victim was White.”
Deborah Denno, a professor at Fordham Law School and expert in lethal injections, was skeptical that Bell’s bill would have an impact on executions in Virginia. “Some of these departments of corrections have not only gone across state lines, but they’ve gotten drugs internationally,” she said Monday, pointing out that Missouri officials exchanged envelopes of cash for vials of pentobarbital. “So, I think it just goes underground and both departments and companies engage in this dance of drug purchases.”
Both she and Dunham said it was more likely that shifting political tides, including the state’s new Democratic majority, would lead Virginia to abolish the death penalty. The state held its last execution in 2017, and Dunham said courts are no longer imposing new death sentences. In February, VDOC spokeswoman Lisa Kinney said the state was missing rocuronium — a muscular relaxant used in its execution protocol — and would need to order more to carry out an execution.
“I think that puts Virginia on the cusp of outright abolition,” Dunham said. “And at this particular historical moment, after George Floyd and Breonna Taylor, we may be facing a criminal and legal system reckoning in Virginia.”