Capital Punishment in the United States Explained

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For January execution of Ricky Gray, Virginia plans to use drug involved in 3 botched executions elsewhere

On Jan. 18, if all goes according to plan, Virginia will execute Ricky Gray for killing a former Virginia Beach homecoming queen and her family in Richmond more than a decade ago.

Gray, whose only other option is the electric chair, will likely die by lethal injection. But the method the state uses to administer the deadly drugs is raising concerns and prompting Gray's lawyers to consider their response, including a potential court challenge.

The 3-drug combination that Virginia has chosen for the execution includes Midazolam, a drug that the state has never used before and that has been involved in botched executions elsewhere.

Furthermore, Virginia would become the 1st state in the country to use a version of Midazolam manufactured by a "compounding pharmacy" - one whose identity is not released to the public and which does not operate under the same federal regulations as the large drug makers.

"It hasn't been done before anywhere, and the drug is new to Virginia executions," said Rob Lee, one of Gray's lawyers and the executive director of the Virginia Capital Representation Resource Center.

Midazolam would be the 1st of the 3 drugs administered in the execution. State officials say other drugs previously used as the 1st in the process have become very difficult to get.

"Florida has used this 3-drug protocol many times, starting with a lethal injection on Oct. 15, 2013," said state Department of Corrections spokeswoman Lisa Kinney.

But the Midazolam used there wasn't made in secret by a compound pharmacy, said Megan McCracken, a lethal injection expert who works with the Death Penalty Clinic at the UC Berkeley School of Law. The drug's use in executions was upheld by the U.S. Supreme Court in June 2015.

"It brings 2 sets of concerns together," McCraken said. "It's 2 significant changes that introduce risks of pain and suffering."

Gray was convicted of killing 49-year-old Bryan Harvey, 39-year-old Kathryn Harvey and their daughters, 9-year-old Stella and 4-year-old Ruby, on New Year's Day 2006. The family was bound and beaten and their throats cut in the basement of their suburban Richmond home, which was then set on fire.

Bryan was a well-known musician, and Kathryn was a former Cox High School homecoming queen who owned a toy store. In all, Gray and his nephew Ray Joseph Dandridge are linked to the killings of 9 people.

Gray was arrested 7 days after the murders and confessed to them. He told police he and Dandridge were looking for a house to rob and noticed the front door was open. After the killings, they stole a computer, wedding ring and basket of cookies.

Gray pleaded not guilty to the charges, arguing he should receive leniency because of evidence of physical and sexual abuse during his childhood and because he used PCP during the killings. He was found guilty in August 2006 and sentenced to death that October.

Virginia has executed 111 people since 1982, but only 6 since 2010. Currently there are 7 men, including Gray, on death row.

An execution date of March 16, 2016, was set in January but Gray was issued a stay in federal court to allow the U.S. Supreme Court to consider 2 petitions. The time for the Supreme Court to review those has now expired, and a circuit court judge earlier this month set Jan. 18, 2017, as Gray's execution date.

It was questionable whether the state could have executed Gray in March anyway.

For years the drugs used in executions nationwide have been harder and harder for states to obtain. Drug-makers do not want their names or their products associated with executions and have refused to sell them to states for that purpose.

That has led many states to turn to the compounding pharmacies, which make the drugs and then provide them to states in secret. Until this year, Virginia did not have a law allowing for the use of such drugs.

In February, during the legislative session, Corrections Department officials claimed that they did not have enough pentobarbital - then used as the 1st drug in the state's 3-drug cocktail - to execute Gray.

DOC officials had obtained 3 vials of pentobarbital from Texas last year, 1 of which was used to execute convicted murderer Alfredo Prieto. Though they had 2 unexpired vials left, state officials claimed they didn't have enough.

The Virginia Death Penalty Coalition, which opposes the death penalty, released a statement claiming that the state had the drugs it needed to kill Gray by using lethal injection and that the department's claim otherwise was designed to put pressure on state legislators to bring back the electric chair.

Inmates condemned to die in Virginia can choose between lethal injection and the electric chair, but the state must use lethal injection if an inmate refuses to make the choice. That meant that if the drugs weren't available, Gray could have refused to choose a method of execution and the execution could not move forward.

The General Assembly passed a bill allowing the state to choose the electric chair as its method of execution. Rather than sign the bill, McAuliffe amended it to allow state officials to obtain execution drugs made by compound pharmacies in secret.

McAuliffe, a Democrat who supports capital punishment, said at the time that his plan was essential to ensure that the death penalty continues without resorting to the electric chair.

"These manufacturers will not do business in Virginia if their identities are to be revealed," McAuliffe said at a news conference.

In addition to being the first using Midazolam obtained in secret, Gray's execution would also be the 1st under the new law.

"The ongoing issue," said Robert Dunham, executive director of the Death Penalty Information Center, "is how do you assure that the drug is as advertised when you don't know the producer or what its safety record is? How can a prisoner be offered an alternative way of being executed if he doesn't know what the source of the drugs is and the state is the only one with that information?"

Gray requested additional information about the execution process from the state, which refused to provide it.

At a hearing Nov. 21, a judge declined to force the state to release more information about its process.

Lee said he is considering appealing the ruling.

In a 3-drug protocol execution, the 1st drug is supposed to render the condemned person unconscious, the 2nd to paralyze him and the 3rd to stop his heart.

1 of the problems with using Midazolam is that it is not an anesthetic, but an anti-anxiety drug, McCracken said.

In 2 of the botched executions using the drug - that of Joseph Wood in Arizona in July 2014 and Dennis McGuire in Ohio in January 2015 - Midazolam was part of a 2-drug cocktail. The botched execution of Clayton Lockett in April 2014, in which there were problems inserting an IV to get the drugs into his bloodstream, used 3 drugs.

In all 3 cases, the condemned man at first appeared to be unconscious, then gasped for air or struggled in pain.

"It's not used to maintain anesthesia," McCracken said. "So with the 3 botched executions using Midazolam, 1 of the similarities ... is the person initially loses consciousness or appears to and then regains consciousness."

In all of those, the potency of the drug being used was known because it was made by drug makers, not at a compound pharmacy, McCracken said. If Gray is executed using a compound version of Midazolam in January, no one will know the potency of the drug, she said.

"There is a lot of science out there that this is an inappropriate drug to use," she said. "And in Virginia you have the related issue of the new statute that makes so much information confidential. ... This is a unique situation."

Source: The Virginian-Pilot, November 30, 2016

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