If the execution goes forward, it would be the first time the state has used pentobarbital, a powerful barbiturate, as part of its lethal mix of drugs. Virginia, and many other states, previously had used sodium thiopental as the first drug in a three-drug procedure until the drug’s only American manufacturer stopped producing it this year.
The switch led to controversy this summer when an official with Lundbeck, the Danish company that makes pentobarbital, said the drug’s role in executions was a “distressing misuse.” The company announced that it would block shipments to U.S. prisons that intended to use the drug for executions.
The Virginia Department of Corrections is “fully prepared” to carry out Jackson’s scheduled execution, according to spokesman Larry Traylor. He said the agency received five shipments of pentobarbital from a health-care services company in North Carolina this year before Lundbeck imposed the restrictions in late June.
Traylor said the DOC is developing “contingency plans” for future executions in light of the restrictions but would not elaborate.
“We are confident that Virginia will always be able to implement the orders of the court,” Traylor said.
Nearly a decade ago, Jackson crawled through a bathroom window of 88-year-old Ruth Phillips’s Williamsburg apartment. He later told investigators that he thought no one was home.
Jackson turned on the bedroom light and started rummaging through a purse when Phillips awoke and confronted him: “What do you want? I’ll give you whatever, just get out,” she told him, according to court papers.
On Aug. 26, 2001, Phillips did not show up for Sunday church services, and calls to her apartment went unanswered. Her son, Richard Phillips, became worried and went to check on her about 7 p.m. He found her in her bed, dead, her body “twisted and exposed,” according to court papers.
As he dialed 911, he noticed that the screen on the bathroom window had been removed, court papers say. An empty brown wallet was on the floor next to the bed.
Jackson later told police that he broke into the woman’s apartment through the bathroom window and searched her purse, court papers say. He said he held a pillow over her face and sexually assaulted her. Later, he used $60 he took from her purse to buy marijuana.
In 2002, a jury found Jackson guilty of two counts of capital murder in addition to robbery, rape and other charges.
Jackson’s attorneys are not challenging his guilt but have asked the Supreme Court to send the case back to the trial court for a new sentencing. They say that jurors may have opted for punishment of life in prison if they had heard more details, including testimony from Jackson’s brother and sister, about physical and emotional abuse Jackson suffered as a child.
As a child, Jackson was beaten by his father daily, sometimes with a belt, Jackson’s brother and sister have testified. His brother has said in court that he and Jackson were sometimes confined to their room for hours and could not talk or use the bathroom. Michele Brace, one of his attorneys, called it a life of “depraved, daily and sadistic abuse.”
In 2010, a federal judge in Alexandria vacated Jackson’s sentence, ruling that the evidence the jury heard about Jackson’s childhood portrayed a “family in which physical discipline occasionally got out of hand” but that the “reality was of a boy living in terror.” A federal appeals court overturned that ruling.
Jackson is among 11 men on Virginia’s death row.
Jackson’s defense team did not challenge Virginia’s planned use of the new drug.
Lundbeck has sent letters to the governors of 16 states that use lethal injection, making clear its objection to using the drug in capital punishment, and has implemented a “restricted” distribution process. Since late June, purchasers of the drug have been required to sign forms stating that they will not redistribute it without Lundbeck’s approval, Lundbeck spokesman Matt Flesch said.
Lundbeck cannot “ensure the safety and efficacy of pentobarbital in lethal injection,” Flesch said.
The company decided not to pull the drug, which represents 1 percent of its sales, because it is used to treat conditions including a form of epilepsy, Flesch said.
Richard Phillips, now 70, said the days leading up to the execution have been “tough” on him and declined requests for an interview. He said he did not plan to attend.
Phillips told the Daily Press of Newport News that he does not want revenge but that he is relieved that the case could finally come to an end.
“I want the sentence to be carried out,” he told the Daily Press. “The law is that there’s a capital punishment, and the jury felt it was appropriate. I don’t disagree.”