America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Virginia's lethal injection costs set to skyrocket as secret drug vendor charges $16.5K per execution

The total cost would be $49,500 per lethal injection
The total cost would be $49,500 per lethal injection.
Richmond Times-Dispatch -- The Virginia Department of Corrections has agreed to pay a secret supplier of lethal injection drugs $16,500 per execution under a new state contract, more than 30 times higher than what prison officials say they would have had to pay last year for a supply of chemicals sufficient for one execution.

In early 2015, an equivalent batch of drugs would have cost $525.14, according to the Department of Corrections. In 2013 and 2014, a batch would have cost a little less than $250, according to the agency, which calculated the costs by reviewing past invoices.

Virginia’s process for buying execution drugs changed dramatically this year after the General Assembly passed a law allowing the Department of Corrections to buy special-ordered drugs from compounding pharmacies rather than getting them directly from pharmaceutical manufacturers. The legislation was intended to make it easier for the state to purchase drugs that have become increasingly difficult to acquire as pharmaceutical companies pull back from participating in the death penalty.

The law, which took effect July 1, allows the new vendor’s identity to remain hidden, a provision Gov. Terry McAuliffe said was necessary to entice companies to do business with Virginia without fear of exposure. McAuliffe, a Democrat, proposed the secrecy bill this year as an alternative to a Republican proposal to use the electric chair as a fallback option if the state should ever be unable to carry out a scheduled execution due to a lack of drugs. At the time, McAuliffe said lawmakers had a choice between effectively ending the death penalty or finding a new way to purchase chemicals.

“The death penalty is the law in Virginia,” said McAuliffe spokesman Brian Coy. “And in the modern atmosphere, with respect to lethal injections, this is the cost of enforcing the law.”

Critics of the law say the lack of public oversight opens the door to price gouging by allowing an unknown vendor to negotiate with a government in desperate need of a controversial product.

“It sounds like we’re executing people with designer heroin or something,” said state Sen. Scott A. Surovell, D-Fairfax, a death penalty opponent who voted against the secrecy law. “Usually when government does things secretly, taxpayers end up paying through the nose. ... Instead of $2,000 toilet seats, I guess we’re going to get $15,000 injections.”

Officials redacted the cost in their initial response to a Freedom of Information Act request filed by the Richmond Times-Dispatch, citing the secrecy measure that appears to only cover the supplier’s identity. After a reporter questioned whether the secrecy law also shields the contract’s financial details, the Department of Corrections released a new version of the contract that discloses the price. Corrections spokeswoman Lisa Kinney said in an email that the price was being revealed after “further consideration by counsel as to the level of confidentiality required by the General Assembly.”

The price covers three doses of the compounded drug (a primary dose and two backups) and enough vials to allow the drug to be tested every month until its expiration date. Kinney noted that drugs purchased from manufacturers could be treated like “any other commercially available drug” and didn’t have to be tested.

Though several death-penalty states, including nation-leading Texas, carry out executions using a single drug, Virginia uses a three-drug execution protocol: a sedative in step one, a paralytic in step two and a final drug to stop the heart. Virginia has struggled to find drugs for the first step, which can involve one of three approved drugs: midazolam, pentobarbital and sodium thiopental.

When the state executed serial killer Alfredo Prieto in October 2015, officials had to use pentobarbital obtained from the Texas prison system free of charge, a process challenged by Prieto’s lawyers. The state’s supply of midazolam had expired shortly before Prieto’s Oct. 1 execution date.

Kinney said the $16,500 covers only one of the drugs needed for the three-step protocol. She did not specify which one. If the state had to buy all three drugs from the compounding pharmacy, Kinney said, the total cost would be $49,500.

Seven men are on Virginia’s death row, but none has a pending execution date. The state doesn’t appear to have purchased any drugs under the new contract, because officials said no records exist in response to a request for documents showing what, if anything, has been ordered.

Two death-penalty experts said the $16,500 figure for the one drug appears unusually high compared with the drugs’ market value and costs reported in other states.

Robert Dunham, executive director of the Death Penalty Information Center, noted that Missouri has been paying $7,178 for two vials of pentobarbital per execution, according to a recent Buzzfeed News report. The prices offered to Virginia, Dunham said, are “exorbitant.”

“Public review of contractors and government contracts deters fraud, overpricing, conflicts of interest, and other questionable business practices,” Dunham said. “A company that knows that its identity will be publicly disclosed and that it may be called upon to defend the details of its contract is much less likely to overcharge so significantly.”

Corinna Barrett Lain, a professor at the University of Richmond School of Law who researches capital punishment, said the pharmacies’ desire to avoid bad press can drive up costs.

“There’s no pharmacy out there that wants to be known as the death drug producer. And part of that is just simple economics,” said Lain, who has publicly opposed lethal-injection secrecy efforts in Virginia.

The electric-chair bill had already been passed by the legislature, but McAuliffe said he would not sign it and instead offered the prospect of contracts with secret pharmacies. After McAuliffe said the Republican-controlled General Assembly would be to blame for ending the death penalty in Virginia, the legislature passed his amended bill in a series of close votes.

The debate over execution methods came as the Department of Corrections said it lacked the chemicals needed to execute Ricky Javon Gray, who was sentenced to die in connection with the 2006 murders of Richmond’s Bryan and Kathryn Harvey and their two young daughters, Stella and Ruby.

Gray had been scheduled to die March 16, but his execution was delayed pending further appeals.

Source: Richmond Times-Dispatch, Graham Moomaw, September 30, 2016

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