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Virginia Governor Says No to Electric Chair, Yes to Secretly Making Lethal Injection Drugs

Governor Terry McAuliffe nixed a plan to bring back the electric chair, and instead proposed allowing the state to hire a pharmacy to secretly cook up a special batch of lethal injection drugs.

by Tess Owen
Apr 11 2016, 4:02pm

Photo by Steve Helber/AP

Governor Terry McAuliffe waited until the last minute on Sunday night to nix a plan by Virginia lawmakers to bring back the electric chair as the state's go-to execution method.

Last month, Virginia's state legislature approved a bill to use the electric chair in response to a nationwide shortage of lethal injection drugs. McAuliffe, a Democrat, had until midnight on Sunday to either veto or amend the legislation.

To address the lethal injection drug shortage — caused by European labs refusing to export the substances to the US for use in executions — McAuliffe has proposed an alternative that would allow the state to hire a pharmacy to secretly cook up a special batch of the deadly drugs. Under McAuliffe's amendment, the name of the pharmacy would withheld from the public to shield it from scrutiny.

Virginia's Republican-controlled General Assembly will have to ratify McAuliffe's amendment when it reconvenes later this month. The governor unsuccessfully tried to pass a similar bill last year.

McAuliffe explained why he decided to gut House Bill 815 during a press conference on Monday. "There is no justification for a bill... that carries such horrific consequences," the governor said. "Most of our citizens share my concerns and do not wish to be forced into using this terrible form of punishment."

He added that his proposed secret pharmacy measure was "controversial but necessary."

Related: Executions Across the World Hit a 25-Year High in 2015

In response to McAuliffe's decision, the human rights group Reprieve issued a statement noting that courts in Arkansas and Missouri have already struck down similar secret pharmacy provisions. Just three weeks ago, a Missouri court ruled that the state's execution drug suppliers could not legally be considered "part of the execution team," and ordered that the state should disclose records relating to their involvement.

"Secrecy will only make the process less transparent, the government less accountable and executions more dangerous and costly," Reprieve said in a statement.

McAuliffe's decision to gut the electric chair bill was apparently made just hours after he and his wife Dorothy hosted a fundraising event for Democratic frontrunner Hillary Clinton at the couple's home in McLean, Virginia.

If the governor had signed the bill, its repercussions might have been felt beyond Virginia's death row. McAuliffe has a close relationship with Clinton and chaired her 2008 presidential campaign. There has been speculation that he could be picked as Clinton's running mate if she wins the Democratic nomination this year.

In October, Clinton asserted her support for capital punishment in extreme situations, and she reiterated that stance during a Democratic debate in February. "I do, for very limited, particularly heinous crimes, believe it is an appropriate punishment," Clinton said.

'There is no justification for a bill... that carries such horrific consequences.'

Lethal injection has been the primary method of execution in the US for the last 40 years, but obtaining the necessary drugs became more difficult in 2012 when the European Commission imposed strict export controls to ensure they weren't being used "in capital punishment, torture, or other cruel, inhuman or degrading treatment or punishment."

Virginia officials have already indicated that the state is running short on the three drugs needed for the lethal injection cocktail. Last October, The Texas Department of Corrections sent Virginia three vials of pentobarbital to execute a serial killer, returning the favor after Virginia sent Texas the drugs in 2013. Virginia authorities haven't been completely clear on just how much they have left.

Amid the drug shortage, some states have gone back to the drawing board to consider alternative execution options. Wyoming and Oklahoma plan use gas chambers, while Utah's contingency plan is to bring back firing squads. Mississippi is also considering legislation to allow the use of firing squads.

While lethal injection is often touted as the most humane way to kill prisoners, Maya Foa, the death penalty coordinator at Reprieve, noted that "a number of recent high profile botched executions [is] exposing the true brutality of lethal injection executions."

""Far from being humane and clinical, lethal injection is the chemical equivalent of being burned at the stake, so it's little wonder healthcare companies don't want their medicines anywhere near the execution chamber," Foa said.

In one notorious incident, Oklahoma's execution of inmate Clayton Lockett in December 2014 lasted 43 minutes and created what a prison warden who witnessed the ordeal described as a "bloody mess." Doctors refuse administer lethal injections because it would violate the Hippocratic oath, which compels physicians to do no harm. Decisions about which drugs to use are often left up to prison officials and authorities with no medical training.

Related: Documents Reveal 'Bloody Mess' at Botched Oklahoma Execution of Clayton Lockett

The drug midazolam is one of three chemicals commonly used in lethal injection cocktails, and it is supposed to knock prisoners out so that they can't feel excruciating pain as the other two drugs flow into their bloodstream. Prisoner rights advocates argued before the Supreme Court last year that midazolam actually "has no pain-relieving properties and cannot reliably produce a deep, coma-like unconsciousness." The Supreme Court nevertheless ruled 5-4 that the use of midazolam in executions is legal and does not violate the Eighth Amendment, which prohibits "cruel and unusual punishment"

"Under the court's new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake," Justice Sonia Sotomayor wrote in her dissent to the ruling.

In another dissent, Justice Stephen Breyer said the court should now debate the constitutionality of the death penalty itself. The court struck down part of Florida's death penalty law earlier this year on the grounds that it did not give jurors a sufficient role in deciding whether inmates should be executed, but a 1976 ruling about the constitutionality of capital punishment still stands.

US executions have been on the decline since 1935, when states killed 197 prisoners. The highest execution total in recent years was 98 in 1999, and last year states killed 28 people, the fewest since 1991. Southern states have carried out 81 percent of the 1,429 executions in the US since 1976, according to the Marshall Project, and three states — Texas, Oklahoma, and Virginia — have been responsible for more than half of all the executions nationwide in that time.

McAuliffe's decision on the electric chair was particularly fraught given Virginia's history of racism when it comes to meting out justice with the device colloquially known as "Old Sparky." The state first used the device to execute a black man who was convicted of raping a white woman, and the Guardian found that 217 of the 267 people who have died by electrocution since 1908 were black.

Follow Tess Owen on Twitter: @misstessowen