Ethical Concerns in Ricky Gray Execution

By: Holly Caitlin Farris, 3L
Section Editor

Ricky Gray was pronounced dead by lethal injection at 9:41pm on Wednesday, January 18, 2017, following the administration of a never-before-used drug combination. According to his attorney, Elizabeth Peiffer, his death took “from the world a man trying to make amends and make life better for others.” Mr. Gray was sentenced to death for the 2006 murders of the Harvey family in Richmond,

Virginia. The crime occurred in January of 2006 and the case went to trial within a year. The trial consisted of two phases: the guilt phase and the sentencing phase. After finding Mr. Gray guilty of capital murder, the jury found the aggravating factor of vileness and sentenced Mr. Gray to death. The jurors heard evidence of the details surrounding the violent crime, but did not hear the details of Mr. Gray’s years of abuse that led to his drug use at the young age of 11.

Mr. Gray endured years of unimaginable mental, physical, and emotional abuse from older family members, leading him to turn to drug use to cope with the trauma. He was under the influence of the strong dissociative drug, PCP, at the time of the crime. There was evidence that Mr. Gray did not remember committing the crime; however, this evidence was not presented to the jury. In post-conviction proceedings, there can be hearings to weigh conflicting evidence—such as the conflicting evidence about why Mr. Gray’s attorneys did not present the information that he did not remember the crime to jurors—but both the Supreme Court of Virginia and the United States District Court for the Eastern District of Virginia denied Mr. Gray this opportunity. Despite the questions of ineffective trial counsel and inconsistent evidence, a stay of execution was denied by the courts, leaving any chance of saving Mr. Gray’s life in the hands of Governor McAuliffe.

Ricky Grey in a recent photo. He was executed January 18. | Source: Elizabeth Peiffer.

Ricky Grey in a recent photo. He was executed January 18. | Source: Elizabeth Peiffer.

Mr. Gray’s defense team petitioned Governor McAuliffe for clemency on the grounds that the jurors did not know about the details of his years of abuse and drug use. They also argued that Mr. Gray showed great remorse for the crime and had been a model prison inmate who was trusted and well-behaved. His attorneys believed that justice could be served by a life sentence without the possibility of parole, the same sentence received by his codefendant. Unfortunately, Governor McAuliffe denied the petition and Mr. Gray’s execution proceeded as scheduled. The defense team learned of the denial through the media.

Mr. Gray’s execution raised many questions. Throughout the years, the Virginia Department of Corrections (VDOC) has used a three-drug protocol. For Mr. Gray’s execution, however, it planned to use two drugs that had never been used before in an execution: compounded Midazolam (intended to render an inmate unconscious and insensate) and compounded potassium chloride (to stop the heart). This new combination raised many concerns. For example, Midazolam, even in its FDA-approved form, is an antianxiety drug and not an anesthetic like the drugs it replaced in the protocol; it is not designed to maintain unconsciousness when agonizing stimuli—like potassium chloride—are introduced. The VDOC presented testimony that it was “logical”—though not established scientific evidence—if it gave a massive dose of the drug, it would acquire the ability to invoke unconsciousness. Moreover, because compounded drugs are mixed in small batches without adherence to federal pharmacological regulations, the quality of mixtures varies. Without knowing the procedures followed in mixing the compounded chemicals, it is impossible to assess their quality. One thing was known for sure: if the compounded Midazolam was not effective in quickly inducing unconsciousness, injection of the next two drugs would indisputably result in an excruciating death and an execution that did not comport with protections provided by the Eighth Amendment. The process of creating the drugs, and the source of the drugs to be used in Mr. Gray’s execution, were to be kept secret.

When Mr. Gray’s lawyers learned that a new combination of drugs prepared in secret would be used in his execution, they filed suit seeking sufficient information to assess the effectiveness of these new drugs, and the care the VDOC had taken in determining to make this change. They first asked the Court to grant a preliminary injunction to stop the execution—scheduled to take place the next month—so the merits of their allegations about the effectiveness of the new lethal injection protocol could be litigated. The federal judge refused to grant the injunction. Rather than address the merits of Mr. Gray’s allegations, the Virginia Attorney General asked that the VDOC be granted an extension and not be made to answer the merits of the suit until after Mr. Gray’s scheduled execution date, thereby rendering the litigation of the issue moot upon Mr. Gray’s execution.

The January 18 execution introduced additional questions and concerns. First, after Mr. Gray was strapped to the gurney, a curtain was closed while IV lines were inserted. The curtain typically remains closed for five to ten minutes; Mr. Gray’s curtain remained closed for 33 minutes, longer than any previous execution. The VDOC explained staff had trouble inserting IVs, but details of the exceptional problem remain unknown. After the curtain was opened and administration of the chemicals began, Mr. Gray appeared to retain or regain consciousness and showed movement following the administration of the compounded Midazolam, raising concerns that the drug did not render him unconscious and insensate. It became impossible to gauge Mr. Gray’s consciousness, however, once the second drug, Pancuronium Bromide, was administered, causing full paralysis. Finally, although the execution protocol requires a physician positioned behind a screen and out of view of the inmate to observe a heart monitor to determine the time of death, the doctor in Mr. Gray’s case came out from behind the screen, placed a stethoscope on Mr. Gray’s chest, and listened to confirm that his heart had stopped.

Shortly following the execution, an Ohio court found the drug combination used in Mr. Gray’s case to be unconstitutional, pointing to Mr. Gray’s death as an example of an execution that demonstrated some of the issues observed in executions using midazolam—“labored breathing, gasping, snoring, and other audible and visible activity.” Both the American Civil Liberties Union and the Richmond Times-Dispatch have posed questions that need to be examined regarding the process of execution in Virginia. At this time, no decisions have been made regarding the use of this drug combination in future Virginia executions.

Ms. Peiffer was the only attorney the VDOC would allow to attend Mr. Gray’s execution. She hopes that what transpired will convince Virginians that there “really are some questions” regarding Virginia’s death penalty and “elements of the process that need to be examined very closely by someone impartial.”

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