RICHMOND, Va. (CN) - Virginia could keep virtually all information about the lethal injection drugs it uses in executions secret under a bill approved by the state Senate on Tuesday.
The controversial bill proposed by Sen. Richard Saslaw and backed by Governor Terry McAuliffe was approved by a 23-14 margin during today's busy crossover session.
Supporters of the bill said the measure is necessary because the most commonly used drugs used in the procedure -- Midazolam, vecuronium bromide and potassium chloride -- are no longer produced in the United States and are difficult to get overseas where manufacturers are often prohibited from providing drugs for capital punishment.
The three-drug "cocktail" described above is used for lethal injections in both Florida and Virginia.
"That's public," Saslaw said during today's senate session. "The components to get to that ... that's not public."
Saslaw said that other states which did not restrict information have "had problems" as the "base manufacturers do not want [the drugs] used."
Protected under the bill are the identities of those who perform executions, those who produce or supply the lethal injection drugs and the names of the materials used to create the lethal compounds.
A clause limiting information about the design and location of the execution chamber was amended from the bill before the final senate vote.
Saslaw said he urged his Senate colleagues to act quickly on the bill in order to protect death row inmate's freedom to choose between lethal injection and the electric chair.
Last year's effort by Senator Charles Carrico to default the electric chair method was quashed, and the Department of Corrections projected that Virginia's remaining lethal drug supply will expire in September 2015.
"Ultimately, if we don't solve this problem and deal with it we're going to go back to the electric chair," Saslaw warned.
Information relating to the death penalty is also exempt from being used as evidence or discovery "unless good cause is shown," a determination reserved for the courts, Saslaw said.
But some of Saslaw's counterparts remained unconvinced even after the vote was taken.
"When you're in a hole, stop digging," said state Senator David Marsden, who suggested a moratorium on the death penalty altogether.
"If you're a minority in the Commonwealth of Virginia and perhaps anywhere in America, you stand a greater chance of getting executed for an offense than if you are not," he said.
Senator John Edwards, another opponent of the measure, pointed to testimony provided before a Senate panel last week by University of Richmond law professor Corinna Barrett Lain.
Lain said under Baze v. Rees; a 2008 Supreme Court decision on lethal injection, drug protocols cannot pose a risk of unnecessary pain under the 8th Amendment.
"How is a litigant going to raise that issue without the information about what is in the compound and the compounding company?" Edwards asked his fellow senators. "They are not regulated by the FDA, they are only regulated by the states... I don't think the bill can be fixed as long as these secrecy issues and confidentiality issues and exemptions from FOIA are in the bill."
Senator Jennifer Wexton also took a dim view of the measure.
"This bill is not about the death penalty, this bill is about government secrecy," she said. "When we're talking about the state-sponsored premeditated homicide of another human being, we need to make sure that we've taken every precaution and that we're following all the constitutional requirements."
Delegate Scott Surovell initiated action against the Department of Corrections after Senator Carrico's bill was introduced last year. An opponent of the electric chair, Surovell also introduced a bill which would abolish electric chair executions in Virginia. Surovell says his bill died quickly, but Carrico's did not.
The Virginia House of Delegates is one of two parts of the Virginia General Assembly; the Senate is the other.
According to Lain, Surovell filed the writ of mandamus against the Virginia Department of Corrections in Fairfax County, which was granted, appealed by the Department and remanded to Virginia Supreme Court. It is not clear whether the Department of Corrections has released the documents to Surovell.
"Surovell filed a FOIA request to find out if the state is in fact out of drugs," the 8th Amendment scholar told CNS in an interview. "The circuit court took evidence on it, had them file briefs, heard arguments and gave Surovell most everything he asked for."
"It was pretty comprehensive," Surovell told CNS. The lawmaker says he requested "any and all records about the drugs that were purchased; purchase orders, invoices, labels, inventories, execution procedures, execution manuals, execution protocols... training documents, lesson plans, training files ..."
Lain says the "security concerns" cited by the Department of Corrections conflict with FOIA objectives. "It doesn't in any way cover an outside vendor who doesn't want bad publicity," Lain said. "Executing people is a legitimate state interest, but since when is Virginia responsible for hiding other people's unsavory transactions?"
"I've heard a lot about the gruesome crimes of the condemned in this debate, the implication being its crazy to worry about what's in the syringe given what people have done to their victims," said Lain, a former Henrico prosecutor. "That narrative needs to be answered. This is not about getting even. It can't be. If it were we'd just torture them. why don't we torture torturers? why don't we rape rapists? A civilized society needs to be better than its members. We can't use their horrible crimes as a measure of what process they are due."
Surovell's case is expected to be heard by the Supreme Court of Virginia in June.
The bill must now pass a house vote before it is enacted.
"The FOIA secrecy piece is a direct attempt to try and legislate the outcome of a Supreme Court case," Surovell told CNS. "That is pretty unprecedented."
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