RICHMOND, Va. (AP) — A Virginia inmate asked a federal court Wednesday to block the state’s plans to execute him next month with lethal injection drugs from a secret compounding pharmacy, suggesting even a firing squad would be more humane.
Attorneys for Ricky Gray said in a federal complaint that there is a serious risk that Virginia will “chemically torture” the man to death when it uses compounded drugs for his execution scheduled for Jan. 18. A firing squad would be a more humane alternative, his attorneys argue, although that execution method isn’t permitted under Virginia law.
“It is both humane, quicker, more effective, and would frankly be completely feasible in Virginia,” Lisa Fried, an attorney for Gray, said of a firing squad. Gray was convicted of killing a well-known family of four in Richmond on New Year’s Day in 2006.
Virginia’s lethal injection protocol calls for the use of a sedative — pentobarbital or midazolam — followed by rocuronium bromide to halt breathing, and potassium chloride to stop the heart.
Documents obtained by The Associated Press show Virginia spent $66,000 to buy enough midazolam and potassium chloride from the compounding pharmacy for two executions. Under the new state law, officials can withhold the pharmacy’s identity.
Gray’s attorneys said Virginia would be the first state in their knowledge to perform an execution using midazolam or potassium chloride from a compounding pharmacy and the first state to perform an execution using more than one compounded drug.
They argue that midazolam carries significant risks, pointing to several problematic executions involving the drug. During an Alabama execution last week, death row inmate Ronald Bert Smith Jr. coughed, and his upper body heaved repeatedly for 13 minutes as he was being sedated.
Inmates in other states have challenged the drug’s use, arguing that it is a sedative, not an anesthetic, and cannot reliably render a person unconscious. But the U.S. Supreme Court ruled 5-4 last year that Oklahoma inmates didn’t prove that midazolam violated the Eighth Amendment’s prohibition on cruel and unusual punishment.
The fact that Virginia obtained the drugs from a compounding pharmacy magnifies the risk of the lethal injection being painful and ineffective, Gray’s attorneys argue. Compounding pharmacies are not as heavily regulated by the Food and Drug Administration as more conventional pharmacies.
“This method for creating drugs unnecessarily adds enormous risk that the drugs will be ineffective, sub-potent, expired or contaminated,” they wrote.
They add that the use of compounded potassium chloride increases the risk that the chemical won’t work, “leaving Mr. Gray alive, paralyzed and in extreme pain.”
A spokesman for Attorney General Mark Herring declined to comment on Wednesday.
Gray’s attorneys want the judge to declare that the use of a three-drug protocol with compounded midazolam is unconstitutional. They’re also challenging the state’s secrecy law that prevents Gray and his attorneys from finding out the identity of the compounding pharmacy.
Gray was convicted of killing Bryan and Kathryn Harvey and their 9-year-old and 4-year-old daughters during a home invasion. Bryan was a musician and Kathryn was co-owner of the World of Mirth toy store.
Trial evidence showed the Harveys were preparing to host friends for a holiday chili dinner when Gray and another man spotted their open front door. They tied the family up in their basement, where they were stabbed and beaten to death before their house was set on fire. Gray claims he doesn’t remember the killings because he was high on PCP. The other man was sentenced to life in prison.
Follow Alanna Durkin Richer on Twitter at twitter.com/aedurkinricher. Her work can be found at http://bigstory.ap.org/journalist/alanna-durkin-richer.
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