Confidential / Casey Marshall

April 20, 2016; Pilot Online

In the name of preserving the death penalty, the Virginia General Assembly passed Democratic Governor Terry McAuliffe’s amendment to allow “compounding pharmacies”—pharmacies and companies that produce customized drugs based on a doctor’s prescription and are not subjected to FDA approval as mass-produced drugs are—to secretly supply drugs for lethal injections while remaining anonymous. McAuliffe’s amendment changed the original bill, which would have made the electric chair the default method of execution. The vote comes amid growing concern that Virginia will run out of the drugs needed for the lethal injection and threaten the viability of the death penalty.

The amendment passed first in the House of Delegates with a 59 to 40 vote, yet not a single Democrat voted for the governor’s measure, illustrating the opposition he faces within his own party. It also similarly passed in the Senate with a 22 to 16 vote.

As Virginia runs low on the drugs needed for lethal injection, the state may increasingly need to turn to “compounding pharmacies.” According to the Death Penalty Information Center, these pharmacies have been used to manufacture specific drugs that are adjusted for a patient’s individual needs. For example, if a patient has an allergy to an inactive ingredient in a drug, a compounding pharmacy can modify the drug and manufacture an altered drug instead. However, other times, these companies also behave like drug companies and mass-produce duplicates of commercially available drugs, all without the necessity of an approval from the FDA.

The amendment assumes that many of these companies may not want to be identified publically as providing drugs for executions. Being associated with executions would then be a hindrance to providing or manufacturing the drug for the state. As such, this bill would allow the state to access drugs from those companies while they remain anonymous. The bill would also mandate the companies that the pharmacies use for equipment and substances to remain anonymous as well.

However, Megan McCracken, a death penalty expert from the University of California, Berkeley, said that lack of confidentiality as a barrier to executions is a “false premise.” “The reality of what we see…is that both pharmaceutical companies and compounding pharmacies are declining to provide execution drugs because they don’t want their products used in executions, not because of a lack of secrecy,” said McCracken. That is certainly true for companies like Lundbeck, a Danish company that stopped selling pentobarbital a drug used to treat epilepsy, to the U.S. after it was discovered the U.S. was using it for executions.

Delegate Jackson Miller, the original sponsor of the bill, publicly supported the proposal, saying that while it was not perfect, it was the only measure that would ensure the death penalty would remain viable in the state. According to Miller, many members were confused about the ramifications of the amendment. Specifically, under Miller’s interpretation, they did not understand that if they did not support the amendment, the death penalty would effectively end in Virginia, as the drugs may not be accessible through an FDA-approved avenue or companies may not want to sell their drug publically.

However, Democratic delegate Marcus Simon contested that interpretation. According to Simon, it’s not that the Department of Corrections could no longer carry out the executions, but they just would not be able to do it in secret. If the DOC chooses to use compounding pharmacies, those companies would have to be identified.

Similarly, others have also raised concern about how the bill was passed without any kind of input from the public or call from the public to make such a change. “There hasn’t been a single public call from anyone for us to vote for this bill,” said Democratic Senator Scott Surovell. McAuliffe also received opposition from religious leaders as well.

“When you have to result to secrecy or brutality to keep the machinery of death going, it’s a sure sign that what we’re doing is not right,” said Bishop Carroll Baltimore, the former president of the Progressive National Baptist Convention.—Shafaq Hasan