By Markus Schmidt
Richmond Times-Dispatch
RICHMOND, Va. — The Virginia Department of Corrections has stockpiled a large supply of chemicals used for lethal injection, including some that are used in executions in other states, according to documents from its pharmacy, obtained by the Richmond Times-Dispatch.
The drugs include two forms of muscle relaxers and a drug that induces a heart attack. All three have been used for executions in Virginia.
However, the department does not have in stock either thiopental sodium or pentobarbital — anesthetics used as the first in the three-drug lethal injection protocol developed by the Department of Corrections.
The department’s three-drug protocol involves either pentobarbital or thiopental sodium — an anesthetic that renders the inmate unconscious; either pancuronium bromide or rocuronium bromide — a muscle relaxer that stops breathing; and potassium chloride, which stops the heart.
Lisa E. Kinney, the department’s spokeswoman, said that without the anesthetic, the DOC cannot carry out death sentences by lethal injection because it is bound by its protocol.
“Thiopental sodium hasn’t been available since 2011, and the department’s supply of pentobarbital expired Nov. 30, 2013,” Kinney said. “No other drug regimen has been approved for lethal injections in Virginia.”
Based on these reports, the House of Delegates two weeks ago passed legislation that would make electrocution the default method of execution if no chemicals are available. A Senate committee defeated similar legislation Monday.
Del. Scott A. Surovell, D-Fairfax, said that the legislature was not operating with full disclosure from the Department of Corrections.
“They were clearly preparing to use alternate drug protocols but never publicly disclosed that during this debate,” Surovell said.
“Instead of simply adjusting their lethal injection protocols like other states, they asked the legislature to preference a 19th-century technology associated with pain and disfigurement and make Virginia the only state in America to mandate forced electrocutions,” he said.
Surovell had sponsored legislation that would have done away with electrocution altogether, but his proposal was defeated by a House subcommittee.
Jon Sheldon, a criminal defense attorney who has defended a number of death penalty cases around the country, said that there is room for different protocols because state law merely requires execution by injection of a lethal substance and leaves the development of a procedure up to the Department of Corrections.
“Numerous departments of correction around the country have moved to a simple and inexpensive one-drug protocol with minimal chance of unnecessary suffering,” said Sheldon, who has published widely on lethal injection.
“The fact that Virginia ties itself in knots trying to kill someone with an unnecessary and indefensible three-drug protocol is one more indication that it is an activity in which our government should not be participating,” Sheldon said.
But Kinney said developing a new procedure isn’t that easy.
“Selecting a lethal injection protocol is an extensive, multistep process involving not just the DOC, but the office of the attorney general and the office of the secretary of public safety,” she said.
The documents from the department’s pharmacy also show the purchase of two other drugs in September and October — midazolam, a sedative, and hydromorphone, a painkiller — that were used in last month’s execution of convicted murderer Dennis McGuire in Ohio.
The execution took 24 minutes. A Columbus Dispatch reporter said McGuire appeared to gasp for air for 10 to 13 minutes. The execution sparked a nationwide controversy because Ohio, like several other states, tried a new drug protocol after some European manufacturers banned prisons in the United States from using their drugs in executions.
It was the first time that such a cocktail had been used in the killing of a prisoner, according to media reports.
Kinney said that Virginia has no plan to follow Ohio’s example. “The DOC is continuing to explore options other than what was used in Ohio,” she said.
Under current Virginia law, a condemned inmate may choose between lethal injection and electrocution. If the inmate does not choose, the method of execution is lethal injection by default.
Under House Bill 1052, sponsored by Del. Jackson H. Miller, R-Manassas, death row inmates in Virginia who wish to die by lethal injection still could face execution by electrocution if the chemicals used for lethal injections are not available.
Of the 86 people executed in the commonwealth since 1995, only seven chose electrocution.
A Senate version of Miller’s proposal, sponsored by Sen. Charles W. Carrico Sr., R-Grayson, was effectively scrapped this week. Democratic senators, joined by Sen. Mark D. Obenshain, R-Harrisonburg, sent it back to the Courts of Justice Committee so staff attorneys could review the measure.
On Monday, the committee decided to carry the measure over to next year’s session.