With a March 16 execution date set for Richmond's Ricky Javon Gray, the Virginia Department of Corrections says it currently lacks enough of that drug to put to death the killer of Richmond's Harvey family.
Virginia has 3 drugs approved for use in the 1st step. But state officials said in September that, because execution drugs are increasingly unavailable, it was able to obtain only pentobarbital from Texas.
The department said last week that it "has only 2" of the 3 pentobarbital vials it received from Texas in August, suggesting, perhaps for backup or other reasons, that 2 are not enough for an execution, even though it appears just 1 vial was used to execute Prieto.
"The Department of Corrections doesn't currently have the step 1 drugs necessary to carry out a death sentence by lethal injection," spokeswoman Lisa Kinney said in an email.
"The department can't comment further regarding the lethal injection drugs due to potential litigation," Kinney said.
"The department works to maintain an adequate supply of lethal injection drugs so as to be able to carry out court orders; however, it has become extremely difficult to obtain lethal injection drugs," she said.
Litigation over compounded pentobarbital obtained from Texas continued right up to Prieto's execution Oct. 1. The compounded pentobarbital was made in an undisclosed pharmacy rather than by a pharmaceutical manufacturer.
This time, it does not appear Texas will be helping Virginia.
"There are no plans to provide lethal injection drugs to Virginia," said a spokesman for the Texas Department of Criminal Justice.
Texas sent Virginia the 3 vials of pentobarbital last year because Virginia sent Texas some in 2013, the spokesman said.
Gray, 38, was convicted of the New Year's Day 2006 murders of Bryan Harvey, 49; Kathryn, 39; and their daughters, Stella, 9, and Ruby, 4, in their Woodland Heights home.
He and Ray Dandridge killed the Harveys in a string of slayings that left seven people dead in Richmond. Gray was sentenced to death for the girls' killings. Dandridge was sentenced to life.
Also killed in the pair's crime wave were Ashley Baskerville, 21, who had been a lookout when Gray killed the Harveys; her mother, Mary Tucker, 47; and stepfather, Percyell Tucker, 55, in their Richmond home.
The Virginia Attorney General's Office complained in court filings last year that the national shortage of execution drugs is the result of "well-recognized efforts by anti-death penalty advocates."
Robert Dunham, executive director of the Death Penalty Information Center, disagrees.
"Drug companies don't want their life-sustaining and life-preserving drugs to be used to kill prisoners," Dunham said. "As a result, they've taken the drugs off the market or refused to sell to prisons."
In any case, many states that execute by injection are having problems. Just weeks after Prieto was put to death in Virginia, Ohio rescheduled 12 executions until 2017 because it could not obtain the required drugs.
Much could happen between now and March 16 to make the question moot. The department could obtain the needed drug, courts or the governor could step in, or Gray could even choose the electric chair instead of lethal injection.
Condemned inmates in Virginia have had the choice since 1995, although only 7 of the 87 executed since then have opted for the chair.
The default method is lethal injection if the inmate refuses to choose. A bill under consideration in the Virginia General Assembly would give the corrections department director the ability to use the option not chosen by the inmate if that method of execution is unavailable.
However, it is unlikely that could be made law by March 16. The department said it has not taken a position on the legislation.
Virginia uses a 3-step lethal injection protocol similar to many other states.
The state has approved 3 drugs - sodium thiopental, pentobarbital and midazolam - for the 1st step, which renders the inmate unconscious. Pancuronium bromide or rocuronium bromide causes paralysis in the 2nd step, and potassium chloride stops the heart in the third and final step.
A saline solution flushes the IV line between the 1st and 2nd and the 2nd and 3rd chemicals. 2 IV lines are used, 1 as a backup in case there is a problem with the 1st. An officer pinches the inmate after the 1st drug is administered to test for consciousness.
Kinney, the corrections spokeswoman, said last week that, in addition to the two vials of pentobarbital from Texas that expire in April, the department has potassium chloride that expires in June and rocuronium that expires in April 2017.
Virginia used sodium thiopental in the 1st step for many years, but it no longer is available in the U.S. for any purpose. The state's supply of midazolam expired shortly before Prieto's execution last year, prompting the use of the pentobarbital from Texas.
When Prieto's lawyers learned through the Freedom of Information Act that the state intended to use compounded pentobarbital from Texas, they went to court to block his execution until more could be learned about the drug.
They asked if it was being stored adequately and about its shelf life and potency. The lawyers argued that, if an inmate is not sufficiently sedated by the first drug, it could lead to an agonizing death.
Prieto's lawyers referred to executions in Oklahoma and South Dakota using compounded pentobarbital that had apparent problems.
"Mr. Prieto alleges, based on the information available to him and this Court about the intended manner in which the (Department of Corrections) is prepared to kill him, that there is a substantial, unacceptable and unnecessary risk that his execution will amount to cruel and unusual punishment," the lawyers said.
The day before Prieto's execution, the attorney general's office told a federal judge that the pentobarbital was compounded by a licensed pharmacy in Texas, which does not disclose the suppliers or manufacturers of drugs used in lethal injections.
"The Texas pentobarbital is the only substance (Virginia) has been able to obtain for use in the 1st step of its 3-drug protocol," the Virginia Attorney General's Office said.
Virginia authorities also said the pentobarbital had been independently tested and verified as potent, contaminant-free, maintained in appropriate conditions and used successfully in more than two dozen executions in Texas. Prieto's execution using the drug appeared to go smoothly.
U.S. District Judge Henry E. Hudson dismissed Prieto's attempt to win a preliminary injunction that would have delayed his execution.
"The difficulty states face in obtaining the appropriate drugs for conducting a lethal execution has been a topic of public debate for a number of years," Hudson wrote.
The judge suggested Prieto's real intent was to delay his execution and that his lawyers should have anticipated Virginia might face problems obtaining drugs and acted sooner.
Megan McCracken, a lawyer with the Death Penalty Clinic at Berkeley Law in California and an expert on lethal injection issues, said the current position of Virginia corrections officials has her stumped. Based on what little the department says, it appears it has the drugs to carry out one execution, she said.
"All I can say is, something here isn't adding up," McCracken said.
Dunham, with the Death Penalty Information Center, said the situation was reflective of the problems associated with the secrecy surrounding details of executions.
"We simply cannot know what is going on," Dunham said.
Source: Richmond Times-Dispatch, January 25, 2016
