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Will the Supreme Court Kill The Death Penalty This Term?

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Will the U.S. Supreme Court add the fate of the death penalty to a term already fraught with hot-button issues like partisan gerrymandering, warrantless surveillance, and a host of contentious First Amendment disputes?
That’s the hope of an ambitious Supreme Court petition seeking to abolish the ultimate punishment. But it runs headlong into the fact that only two justices have squarely called for a reexamination of the death penalty’s constitutionality.
Abel Hidalgo challenges Arizona’s capital punishment system—which sweeps too broadly, he says, because the state’s “aggravating factors” make 99 percent of first-degree murderers death-eligible—as well as the death penalty itself, arguing it’s cruel and unusual punishment.
He’s represented by former acting U.S. Solicitor General Neal Katyal—among the most successful Supreme Court practitioners last term. Hidalgo also has the support of several outside groups who filed amicus briefs on his behalf, notably one from a group including Ari…

Virginia won't say how much it would pay secret supplier for lethal injection drugs

The Apothecary Shoppe, Tulsa, Missouri.
The Apothecary Shoppe, Tulsa, Missouri.
Agreement between Virginia Department of Corrections and secret vendor for purchase of lethal injection drugs

It's unlikely there are many state contracts as peculiar as the one between the Virginia Department of Corrections and a secret vendor.

The contract - a memorandum of agreement obtained by the Richmond Times-Dispatch under the Freedom of Information Act - states that it is "for the purchase of drugs to be used exclusively for implementing the lawful order of the court for a death sentence by lethal injection in the commonwealth."

A Virginia law that took effect July 1 keeps the identity of the supplier secret, and the Department of Corrections will not even reveal what the vendor is charging to provide Virginia a product or products specified only for use in executions.

A request to the governor's office for the figure was not answered Wednesday.

The initial agreement may be good for up to seven years but can be ended by the vendor if it cannot make a requested compound, "or for no reason whatsoever."

As pharmaceutical manufacturers have stopped supplying drugs for executions, some states have found so-called compounding pharmacies willing to do so - provided they are not identified.

But compounding pharmacies are not subjected to the same approval process as larger manufacturers, leading to litigation and allegations about the drugs' effectiveness and the possibility of a botched execution.

Last year, Virginia had to obtain a compounded drug from the state of Texas to execute serial killer Alfredo Prieto, who also had been sentenced to death in California.

Earlier this year, it appeared the Department of Corrections did not have enough drugs to execute Richmond mass-killer Ricky Gray. His March execution date was stayed when his lawyers appealed to the U.S. Supreme Court.

7 men are on Virginia's death row, but none has a pending execution date.

Robert Dunham, executive director of the Death Penalty Information Center, wrote in an email Wednesday, "We don't know who has actually requested the secrecy, the pharmacies or the states (or both). But it is clear that the pharmacies that have chosen to supply execution drugs prefer that the public not know they are doing so."

"No execution drug supplier has voluntarily disclosed its identity. At least 1 - a Tulsa pharmacy known as the Apothecary Shoppe - was identified as a result of a Missouri lawsuit, and was found to have committed more than 1,800 regulatory violations," Dunham wrote.

The secrecy provision was passed by the General Assembly in April as a compromise that avoided a return to the electric chair if lethal injection was not available, something Gov. Terry McAuliffe opposed.

Virginia law allows an inmate to choose between the 2 methods of execution. If the inmate refuses to choose, the default method is by injection.

The memorandum of agreement between the Department of Corrections released by the department this week has redacted the identity of the supplier, the date it was signed, and the price to be paid for "each distribution to the Department of Corrections of a requested compound."

"Each distribution" is defined as "a batch of sufficient quantity of vials of the compounded drug to permit 1 execution by lethal injection (i.e., 1 dose and 2 backup doses) plus enough vials to allow for testing of the compounded drug for every month prior to the date of expiration (i.e., 1 vial every month)."

Citing the state's new secrecy amendment, the Virginia memorandum states: "The identity of the pharmacy or outsourcing facility that supplies drugs for lethal injection, or any officer or employee of such pharmacy or outsourcing facility, and any person or entity used by such a pharmacy or outsourcing facility to obtain equipment or substances to facilitate the compounding of lethal injection drugs shall be confidential, shall be exempt from the Freedom of Information Act, and shall not be subject to discovery or introduction as evidence in any civil proceedings unless good cause is shown."

"The above exemption includes any information reasonably calculated to lead to the identity of such persons, including their names, residential and office addresses, residential and office telephone numbers, Social Security numbers and tax identification numbers," the memorandum says.

The amended state law does not appear explicitly to include the price paid for the drugs as being exempt from the Freedom of Information Act.

Source: Richmond Times-Dispatch, September 15, 2016

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