Take Arkansas, Missouri and Ohio, three states that illustrate the current environment for officials still looking to carry out executions — and offer a glimpse of what could lay ahead for Virginia if it adopts the new legislation.
These three states are in different places when it comes to capital punishment. Arkansas is seeking to resume executions after a decade-long break, while Ohio is an active executioner that will go at least three years between lethal injections as it tries to find drugs. Missouri is among the most active death-penalty states these days, joining Texas and Florida to account for most of the country’s executions since 2013.
In these places, court fights over secrecy are being waged that have, in some cases, postponed executions or resulted in rulings against the states.
In Missouri, a judge ruled last month that the state “knowingly violated” public records laws “by refusing to disclose records that would reveal the suppliers of lethal injection drugs.” The state had been challenged on multiple fronts, including in a lawsuit from the Associated Press and other media organizations pushing back against the secrecy provisions, and a judge ordered them to release their records identifying the suppliers.
The state has not filed an appeal in that case so far and still has time to file an appeal or other motions, according to a spokeswoman for the Missouri attorney general’s office.
Meanwhile, a shield law in Ohio is about to be debated in a federal courtroom. Under this law — signed by Ohio Gov. John Kasich, a Republican presidential candidate, in December 2014 — the state can hide the identities of anyone who compounds or supplies drugs used in lethal injections.
Last year, District Judge Gregory L. Frost dismissed a lawsuit challenging this law, writing that just because the death-row inmates “want or need information does not invariably entitle them to it under the Constitution,” adding: “Not all oversight requires absolute transparency.”
The inmates are challenging the dismissal in federal appeals court, and oral arguments in this case are scheduled for next week.
Increased secrecy — and experts say more is coming
“The shield law is an attempt to create circumstances in which continuity of supply is going to be possible,” Zimring said. “Once the idea of a shield law takes hold, then anybody who is suffering from these issues will go after it.”
More than a dozen states have some kind of secrecy statutes and others have secrecy regulations, said Robert Dunham, executive director of the Death Penalty Information Center. While these statutes largely exist to keep the identities of the executioners shielded, states have been expanding them and arguing that drug suppliers are part of the execution teams and should also be hidden, he said.
“States that have the longest history of aggressively seeking to carry out executions are the ones who’ve also been the most aggressive in attempting to conduct secret executions,” Dunham said.
While some lower courts have rejected these secrecy arguments, appellate courts have reversed these rulings and not forced them to identify suppliers, he said. So far, no higher court has forced a state to release the hidden identity of a drug supplier, Dunham said.
Many states are still struggling to obtain lethal injection drugs
This drug shortage means that even as states fight to defend their secrecy provisions, some are still unable to carry out executions.
Ohio carried out at least one execution each year between 2001 and 2014, but officials there say they will not execute another inmate until next year at the earliest. The last execution in Ohio was in January 2014, when the state’s lethal injection of Dennis McGuire — who admitted to raping and murdering a pregnant newlywed — stretched on for nearly 25 minutes as he struggled and gasped. (That was the first of three executions that went awry that year.)
State officials revamped Ohio’s execution protocols as the state sought lethal drugs. Authorities have delayed Ohio’s scheduled lethal injections multiple times, and the state’s next execution is (currently) set for January 2017 — a schedule meant to give officials “additional time necessary to secure the required execution drugs,” the Ohio Department of Rehabilitation and Correction said in a statement last fall.
This shortage is also behind the current proposal in Virginia. Until 2010, most executions in the United States were carried out using a three-drug combination similar to what Virginia uses, a method that was upheld by the U.S. Supreme Court as constitutional. But a drug shortage sparked by European objections to capital punishment interrupted the supply of these drugs, so states began shifting to a series of new combinations and protocols.
In Virginia and elsewhere, this shortage prompted officials to debate reviving older methods to continue carrying out death sentences. Before McAuliffe proposed hiding the identities of drug suppliers, he was presented with a bill that would have made the electric chair the mandated backup method of execution in Virginia.
Virginia does possess some of the drugs needed to carry out an execution, but not all of them. In an odd turn of events, a state considering hiding the identities of its drug supplier obtained chemicals from a state that has already shielded its own. Among the drugs Virginia possesses are two vials of pentobarbital obtained from Texas last year, both of which expire this month. Texas officials said they gave Virginia these drugs but, due to state law, could not identify the supplier.
“Only Lewis Carroll could write the modern history of lethal injection and capital punishment in America,” Zimring said.
Laura Vozzella contributed to this report.