11/30/2016 For execution of Ricky Gray, Virginia plans to use drug involved in 3 botched executions elsewhere | Courts & Crime | pilotonline.com
For execution of Ricky Gray, Virginia plans to use drug involved in 3
botched executions elsewhere
By Gary A. Harki
The Virginian-Pilot
Nov 29, 2016
Courtesy of Virginia Department of Corrections
This is a photo of the execution chamber at Greensville Correctional Center from the Virginia Department of
NORFOLK
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.
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The three-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 first 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.
“Tt 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 first of the three drugs administered in the execution. State officials say other
drugs previously used as the first in the process have become very difficult to get.
“Florida has used this three-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 compounding 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.
“Tt brings two sets of concerns together,” McCraken said. “It’s two significant changes that introduce
risks of pain and suffering.”
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Ricky Gray
The Associated Press
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 eight
people.
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Gray was arrested seven 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. He was found guilty in August 2006 and sentenced to
death that October.
Virginia has executed 111 people since 1982, but only six since 2010. Currently there are seven 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 two 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.
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In February, during the legislative session, Corrections Department officials claimed that they did not
have enough pentobarbital — then used as the first drug in the state’s three-drug cocktail - to execute
Gray.
DOC officials had obtained three vials of pentobarbital made in a compounding pharmacy from Texas
last year, one of which was used to execute convicted murderer Alfredo Prieto. Though they had two
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 compounding 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
first under the new law.
“The ongoing issue," said Robert Dunham, executive director of the Death Penalty Information Center,
"js 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.
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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 three-drug protocol execution, the first drug is supposed to render the condemned person
unconscious, the second to paralyze him and the third to stop his heart.
One of the problems with using Midazolam is that it is not an anesthetic, but an anti-anxiety drug,
McCracken said.
In two 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 two-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 three drugs.
In all three 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 three botched executions using
Midazolam, one 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 compounding pharmacy, McCracken said. If Gray is executed using a compounding 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.”
Gary A. Harki, 757-446-2370, gary.harki@pilotonline.com
Follow @GaryAHarki on Twitter.
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