Virginia’s Proposed Lethal Injection Secrecy Law

By Elizabeth Guo

On Monday, Governor Terry McAuliffe of Virginia proposed a significant change to the Virginia legislature’s bill to replace lethal injection with electrocution in death penalty cases. Instead of allowing electrocution, the amendment would give greater authority to the Department of Corrections (DOC) for procuring and making lethal injection drugs. Under the proposed amendments, the DOC could contract with a pharmacy to compound drugs necessary to carry out lethal injection. The amendments would also keep the names of drug suppliers and compounders secret by exempting the information from the Freedom of Information Act. Also, the names would not be discoverable “in any civil proceeding unless good cause is shown.”

States with capital punishment are increasingly resorting to state secrecy laws as they are finding it harder to procure the lethal injection drugs they need. At least fourteen states have passed or tried to pass rules keeping the names of lethal injection suppliers confidential. Some states, such as Georgia, define information about the drugs and equipment used in an execution as a “confidential state secret” so that the public prisoners and even courts are prevented from viewing the information. Other states, including Oklahoma, do not designate this information as a state secret but nonetheless, make the information unavailable through litigation. A few states allow litigants to discover the information through litigation, but the state does not need to make the information publicly available.

These secrecy laws are questionably constitutional. In 2015, the ABA approved a resolution asking states that impose capital punishment to publicly disclose the protocols and suppliers used in lethal injections. The resolution noted several constitutional concerns with state secrecy laws. State secrecy laws may violate the Eighth Amendment by making it virtually impossible for prisoners to satisfy the burden of proving that a state’s lethal injection regime constitutes cruel and unusual punishment. State secrecy laws may also violate a public right of access to executions and execution protocols guaranteed by the First and Fourteenth Amendments.

Prison inmates have had mixed success in challenging the constitutionality of the secrecy statutes. While inmates have won rulings at the district level, most state Supreme Courts have upheld these secrecy statutes, sometimes due to political pressure. For example, in 2014, the Oklahoma County District Court ruled that Oklahoma’s secrecy statute unconstitutionally violated prisoners’ rights of due process because it barred litigants from discovering the names of the drug suppliers in civil or criminal proceedings. The Oklahoma Supreme Court initially agreed with the district court, but eventually held that the state secrecy laws were constitutional after lawmakers threatened to impeach the judges. Recently, a Missouri Circuit judge ruled that Missouri must release the names of pharmacies that provided lethal injection drugs for executions.

The Supreme Court has not ruled on the constitutionality of secrecy statutes. In 2014, an Arizona death row inmate appeared before the Ninth Circuit, asking the court to force the state to release the identify of the drug supplier that made his lethal injection drugs. The Ninth Circuit ruled for the inmate, finding that nondisclosure of the lethal injection drug supplier violated the inmate’s First Amendment’s right to information about the state’s manner of implementing the death penalty. However, three days later, the Supreme Court reversed the stay in a terse order, finding that “the district judge did not abuse his discretion in denying Wood’s motion for a preliminary injunction” but did not elaborate on Wood’s constitutional claims.

Virginia’s state secrecy amendment, if it goes through, seems less restrictive than other state secrecy laws. While the state has no obligation to make the identity of the drug supplier publicly available, the amendment does not bar litigants from discovering the names of the suppliers in criminal proceedings. Because many challenges to lethal injection statutes occur through criminal proceedings, the proposed amendment may be an empty gesture that would provide little protection for pharmacies willing to contract with the state to supply lethal injection drugs. If the amendment becomes law, it remains to be seen whether Virginia’s new lethal injection policy would promote or effectively end capital punishment in the state.


2015-2016 Peter Barton Hutt Student Fellow During her fellowship year, Elizabeth Guo was a third year student in the JD/MPH Program at Harvard Law School and the Harvard School of Public Health. Her interests lie at the intersection of law, health care reimbursement, and biopharmaceutical regulation. Elizabeth graduated from Harvard University with a BA in social studies, focusing on the bioethics of assisted reproduction in China. Prior to law school, she was a senior associate at Avalere Health working with life science clients on a range of health policy topics, including Medicare coverage and reimbursement, biosimilar regulation, and healthcare quality programs. Elizabeth served as a student editor of the Journal of Law and Technology and a member of the Mississippi Delta Project’s Delta Project’s Food Policy Initiative. Elizabeth's fellowship paper was entitled: "Reputation and Judicial Deference: An Examination of FDA’s Reputation and Judicial Deference to Agency Action."

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