“Ricky Javon Gray’s bid to halt his Jan. 18 execution, alleging the state’s drugs could “chemically torture” him, will be argued before a federal judge this morning.
Two of the three chemicals planned for use in Gray’s execution were made by an undisclosed compounding pharmacy instead of by pharmaceutical manufacturers, which no longer make drugs available for executions.
One of the compounded drugs is midazolam, a sedative Virginia has not used previously — even in a version made by a pharmaceutical company.
Midazolam has been used successfully in executions in other states, but Gray’s lawyers argue it also has been involved in botched executions elsewhere.
“They will be using midazolam that has been prepared by a secret compounding pharmacy. No state has ever done this. Defendants will also be using compounded potassium chloride. No state has done that, either.
In addition, no state has ever used two compounded drugs in a single execution. The proposed execution of Mr. Gray is truly in uncharted, experimental territory,” Gray’s lawyers wrote in papers filed Friday.
Among other things, Gray contends the execution, as planned, risks violating his right against cruel and unusual punishment and that his due-process rights are being violated by the state’s refusal to reveal the pharmacy that compounded the drugs. Virginia law allows the drugmaker to remain undisclosed.
This morning’s hearing will be the second time in a little more than a year that U.S. District Judge Henry E. Hudson has entertained a request for a preliminary injunction over compounded drug concerns.
On Oct. 1, 2015, Hudson rejected an 11th-hour appeal by serial killer Alfredo Prieto over the use of compounded pentobarbital. Prieto was executed that night, apparently without complications.
There have been a number of legal challenges to execution drugs across the country in recent years. Some are still pending.
Last month, as part of a settlement in a complaint filed by death row inmates in Arizona, that state agreed to stop using midazolam in executions, although its supply of the drug had already expired.
Virginia has executed 80 people by injection since 1995. State law allows inmates to choose between the electric chair and death by injection. If an inmate refuses to choose, injection is the default method.
Gray’s lawyers contend that electrocution also is cruel and unusual punishment and have said a firing squad would be more humane.
According to the Virginia Department of Corrections’ 18-page execution manual, the state uses a three-drug procedure, as do some other states. The first drug renders the inmate unconscious, the second causes paralysis, and the third stops the heart.
Chemicals authorized for use by the manual include midazolam, sodium thiopental or pentobarbital for use as the first drug; rocuronium bromide or pancuronium bromide as the second drug; and potassium chloride — the second compounded chemical planned for use in Gray’s execution — as the final drug.
The chemicals are injected into one of two intravenous lines — the second line is a backup — with a saline flush following the injection of each chemical. Two minutes after the first saline flush, the inmate is pinched or otherwise tested to make sure he or she is unconscious.
The Department of Corrections has obtained enough midazolam and potassium chloride to conduct two executions. The Attorney General’s Office said Friday that the state Division of Consolidated Laboratory Services tested and verified the drugs twice.
Critics contend that if the first drug fails to render the inmates unconscious, they could be awake but paralyzed by the second drug and unable to signal they are suffering pain.
Gray’s lawyers contend the use of a compounded drug heightens the danger. “This method for creating drugs unnecessarily adds enormous risk that the drugs will be ineffective, sub-potent, expired or contaminated. … Recent botched executions have shown the horrific results of using FDA-approved, manufactured midazolam.”
In court papers recently filed by the Attorney General’s Office, the state contends that none of the purported botched executions cited by Gray was the result of the use of midazolam.
Gray was sentenced to die for the New Year’s Day 2006 murders of sisters Ruby Harvey, 4, and Stella Harvey, 9. He also killed their parents, Bryan Harvey, 49, and Kathryn Harvey, 39, in their South Richmond home, which was set on fire. The murder weapons included a knife and hammer.
Less than a week later, Gray and accomplice Ray Dandridge killed Ashley Baskerville, 21, who had been a lookout when Gray killed the Harveys; Baskerville’s mother, Mary Tucker, 47; and stepfather Percyell Tucker, 55, in their Richmond home.
The hearing is scheduled to start at 9 a.m. in the federal courthouse on East Broad Street.”