Execution witnesses in Virginia now will see less of the proceedings, no longer viewing inmates as they are led into the execution chamber and strapped onto the gurney or into the electric chair.
Recent changes in the Virginia Department of Corrections execution manual alter decades-old practices and appear, in part, to have been made in response to issues that arose during the Jan. 18 injection execution of Ricky Javon Gray, which drew more attention than usual because of a new chemical cocktail.
The new protocol calls for a curtain in the execution chamber to be drawn prior to the inmate being escorted inside by the execution team, blocking the view from an enclosed citizen and media witnesses area.
Executions are carried out in “L-Building” at the Greensville Correctional Center in Jarratt. Inmates have a choice between execution by injection or electrocution, with injection the default means if they refuse to choose.
In prior executions, the curtain was open as the inmate entered and was secured to the chair or gurney, allowing a clear view of what was happening and the inmate’s demeanor. The curtain was closed only while intravenous lines and the electrodes for the cardiac monitor were placed.
Under the revised procedures for lethal injections, the curtain will not be opened until the IV lines are in place and the execution is ready to be carried out. A microphone inside the chamber then will be turned on so witnesses can hear the execution order read and any last statement from the inmate.
A redacted copy of the 18-page document signed Feb. 7 by Harold Clarke, director of the Department of Corrections, was made available to the Richmond Times-Dispatch by the Department of Corrections following a request earlier this week.
Asked why the changes were made, Lisa Kinney, a corrections spokeswoman, said Wednesday that “the department periodically updates its internal policies and procedures to ensure adherence to best practices, with the safety and security of staff and offenders remaining at all times paramount.”
“Waiting to open the curtain until after IV line placement reduces stress on the staff placing the lines, which in turn makes the process likely to go more quickly for the offender. Line placement will be finished by the time set for execution, when the curtain will be opened for witnesses. This change brings Virginia’s practice into line with that of other states which carry out executions,” she said.
The Death Penalty Information Center, which tracks executions across the country, agrees and disagrees. The center said a number of other states follow procedures similar to Virginia’s new ones.
But Robin Konrad, director of research and special projects for the center, contends, “They’re doing this in response to a question of why it took longer than normal to insert the IV lines. Their answer is now, ‘Well, we’re not just going to let you know when we start that process.’”
The center’s executive director, Robert Dunham, said, “All of that is why the secrecy provisions are so problematic. There is no legitimate state interest in shielding what goes wrong from public scrutiny.”
Bill Farrar, with the American Civil Liberties Union of Virginia, said, “It’s outrageous, it’s shameful, it’s unacceptable that under these circumstances in particular — less than three weeks after there were problems with the Gray execution — that they would enact new protocols that are more restrictive and more closed and more secretive.”
If the April 25 execution of Ivan Teleguz is carried out, the curtain will not be opened until he is ready for the death warrant to be read and given a chance to make a last statement. Teleguz was sentenced to death in Rockingham County in a murder-for-hire case.
Inmates wear a mask during electrocutions. During lethal injections, the inmate’s feet are closest to the viewing area and the head and face the farthest.
Other changes in the new policy include explicitly permitting a physician, at his or her discretion, to use a stethoscope in addition to the heart monitor to determine when death has occurred during lethal injections.
The former policy called for the physician to observe the heart monitor. However, at Gray’s Jan. 18 execution, a physician appeared from behind the curtain and used a stethoscope.
The Death Penalty Information Center said courts in different parts of the country have ruled differently on the issue of how much witnesses can and cannot see. In some states even the placing of the IVs can be seen.
Dunham said that, “given the nature of the changes, it seems clearly related to a state desire to prevent the public from seeing what might go wrong as opposed to any legitimate penological purpose.”
He said a change targeted to prevent the public from learning about misconduct or a mistake “invites legal challenge.”
Farrar, with the ACLU, said he spotted as many as 30 changes in the new manual — although some typographical and inconsequential — from the one in effect when Gray was executed.
“We don’t know if there’s more than the 30 because there are 39 places where the document has been redacted,” he said.
Farrar said the ACLU wrote a letter to Gov. Terry McAuliffe on Jan. 24 expressing concerns about problems in the Gray execution and asked, among other things, that all executions be halted until the state’s execution protocol can be reviewed.
He said the American Bar Association’s Execution Transparency Resolution of 2015 calls for the entire process to be open to full public view.
“Otherwise, what’s the point of having witnesses?” he asked.
The first two things called for in the ABA’s resolution are that authorities “promulgate execution protocols in an open and transparent manner and allow public comment prior to final adoption; and ... require disclosure to the public, to condemned prisoners facing execution and to courts all relevant information regarding execution procedures.”
Virginia law calls for six citizens to serve as official witnesses and department policy allows up to four media pool witnesses. Others, such as prosecutors or police officers involved in a case, may also attend and view from the same enclosed area. Members of the victim’s immediate family may also witness but do so from a separate viewing area and cannot be seen by the other witnesses.
Farrar said the ACLU is also concerned that information about the drugs used and their manufacturer remains secret. He said the ABA resolution calls for an independent investigation any time an execution is prolonged unusually or the inmate appears to suffer.
He said the ACLU also asked the governor for an independent investigation into Gray’s execution but McAuliffe did not respond to the Jan. 24 letter, written two weeks before the Department of Corrections’ new protocol went into effect.
Kinney, with the Department of Corrections, said the new policy also calls for the death warrant to be read to the inmate in front of the assembled witnesses. Previously, the warrant was read in a cell adjacent to the death chamber before the inmate was led into the execution chamber.
The U.S. Supreme Court allowed the death penalty to resume in 1976. Virginia has executed 111 people since 1982. It was unclear Wednesday when citizen and media witnesses began viewing the executions, but the media did witness the seventh one in 1990.