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Virginia's Lethal Injection Protocol Upheld

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Hattip to Doug Berman at Sentencing Law and Policy for pointing us to, and providing a link to the Fourth Circuit's decision in Emmett v. Johnson, No. 07-18 (4th Cir. July 10, 2008). As Berman reports, a split panel affirmed Virginia's lethal injection protocol. The decision allows Emmett's execution, scheduled for July 24, 2008, to go forward.

In Emmett, the Fourth Circuit reviewed a "nearly identical challenge" to the lethal injection protocol upheld by the U.S. Supreme Court in Baze v. Rees. The prisoner, Christopher Scott Emmett, challenged the constitutionality of Virginia's lethal injection protocol. Today's Fourth Circuit decision rejected Emmett's claim that Virginia's protocol created a "significant and unnecessary risk that the thiopental would not be properly administered..."

The only stated difference between the Kentucky protocol challenged in Baze, and the Virginia protocol upheld today, was the amount of sodium thiopental administered to the prisoner. Sodium thiopental is the first drug administered in Virginia and Kentucky, and is used to render the prisoner unconscious before the second and third drugs are administered. Kentucky uses 3 grams of sodium thiopental and Virginia uses 2 grams.

With the benefit of Baze, the Fourth Circuit examined Virginia's practice of implementing lethal injection. The procedure is outlined in Virginia's Department of Corrections' Divisional Operating Procedure (DOP) 426, but this procedure is subject to a Protective Order and was provided under seal for the court's review. Based on its review of the DOP, the Fourth Circuit found Virginia uses safeguards that are very similar to the Kentucky protocols upheld by the U.S. Supreme Court. The Fourth Circuit therefore found Emmett had failed as a matter of law to demonstrate a substantial or objectively intolerable risk he would receive an inadequate amount of sodium thiopental.

Emmett had challenged Virginia's administration of sodium thiopental on grounds that Virginia's use of the "rapid-flow method of administering the lethal drugs" would not render him unconscious before the second drug - one known to cause pain - was administered. Emmett relied on testimony given in Taylor v. Crawford, Missouri's challenge to lethal injection protocol. In Missouri, an expert had testified that it would take more than a minute and a half for sodium thiopental to cause a deep level of unconsciousness. Using that testimony, Emmett argued that Virginia's procedure of sometimes injecting the second drug "one to two minutes after sodium thiopental" was not sufficient to render him unconscious. The testimony was rejected by the district court because it had little probative value as applied to Emmett. The Fourth Circuit agreed. The Fourth Circuit found it especially relevant that the testimony given in Missouri's trial did "not take issue with [another expert's] observation that such rapid-flow inductions are used in the surgical context." Relying on language of Baze, the Fourth Circuit found Emmett had not met his "heavy burden" of showing Virginia's existing protocol presented a "substantial" or "objectively intolerable" risk of serious harm to Emmett.

Perhaps most interesting is the Fourth Circuit's reliance on Virginia's "extensive historical record of administering the death penalty by lethal injection" and that over the course of 70 executions by lethal injection in Virginia, as compared to the one carried out in Kentucky before Baze, Emmett had failed to establish a record that created a question as to whether he would suffer pain. Stay tuned on July 24, 2008 to see if Emmett's execution goes forward.

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The griping about risk of pain due to maladministration of sodium thiopental should failry be silenced by a "consciousness check" protocol, as emphasised in the CJLF amicus brief in Baze v. Rees.

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