A Virginia death row inmate scheduled to die this month by lethal injection cited Fordham Law Professor Deborah W. Denno’s work in his appeal to the United States Supreme Court to have a firing squad be his execution method.
Ricky Jovan Gray’s appeal cites Denno’s article The Firing Squad as “A Known and Available Alternative Method of Execution” Post-Glossip to make his argument that a firing squad is an available alternative execution method in America, and would reduce his risk of pain when compared to the state’s proposed three-drug lethal injection cocktail featuring compounded midazolam, a never-before-used version of the controversial sedative. Gray’s execution is scheduled for Jan. 18.
The Supreme Court ruled in 2015 in the matter of Glossip v. Gross that the state of Oklahoma could use midazolam as part of a three-drug cocktail in the planned execution of convicted killer Richard Glossip. Gray’s attorneys contend that the compounding formula raises “enormous risk that the drugs will be ineffective, sub-potent, expired, or contaminated,” and point to recent botched executions in Alabama, Arizona, Ohio, and Oklahoma as proof of the risk posed by midazolam.
Denno, who has written about the constitutionality of execution methods, especially lethal injection, for 26 years, described recent botches with midazolam since 2014 as “the most egregious” since lethal injection replaced electrocution as this country’s standard execution method.
“States are loath to change because, if they change to another drug or another method, that acknowledges there is a problem with the method,” Denno said. “States don’t want to concede they’re having challenges or what they’re doing is unconstitutional, because that is a threat to the death penalty itself.”
Virginia law calls for the inmate to choose between lethal injection and electrocution. Both options would amount to “cruel and unusual punishment” under the Eighth Amendment, Gray’s attorneys assert, and, as such, he wishes to be put to death by firing squad, a method available in Utah and Oklahoma. America’s most recent execution by firing squad occurred in 2010 in Utah (Ronnie Lee Gardner).
“Even if midazolam works sometimes, there’s a high risk of it not working properly,” Denno said, noting around seven percent of lethal injection procedures are botched. “Firing squad, at least in modern times since 1976, has worked every time.”
Increasingly, the 31 pro-death penalty states are struggling to acquire the drugs necessary to carry out the injections, leading to a tremendous death row backlog.
A total of 20 executions were carried out in five states in 2016, the lowest number of executions since the death penalty was reinstated in 1976, according to the Death Penalty Information Center. Meanwhile, 2,905 inmates were on death row as of July 1, 2016.