Federal Judiciary

Virginia: lethal drug method valid

By Akin Gump Supreme Court Practice Group

The state of Virginia, arguing that its lethal injection protocol for executions is “virtually identical” to a method upheld by the Supreme Court last month, has urged a federal appeals court to reject a constitutional challenge to the planned execution of Christopher Scott Emmett.  The state’s brief, filed last Friday in the Circuit Court but just now available, can be downloaded here.  A post on this blog discussing a new brief filed Friday by Emmett’s defense lawyers can be read here.

Emmett’s counsel has urged the Fourth Circuit to send the case back to a federal District Court judge to explore fully a variety of differences that the lawyers said exist between Virginia’s three-drug procedure and the Kentucky protocol the Supreme Court upheld on April 16 in Baze v. Rees.

But the state, in its brief, argued that the federal judge in Emmett’s case anticipated the Supreme Court’s approach in Baze, applied the same constitutional standards, and upheld Virginia’s method.  Thus, the state suggested, the Circuit Court need only affirm the District Court’s ruling as is.

Because the Emmett case appears to be the first one in which both sides in a capital case were instructed to analyze how the Baze ruling would apply in other states, the Fourth Circuit’s reaction may start a pattern toward greater — or lesser — review of other states’ protocols.

The state brief stressed in particular the part of the main opinion by the Justices in the Baze case that indicated how difficult it would be for inmates in other states to get delays of their executions based on new challenges to the lethal injection method.

The main opinion also laid down a standard for judging that protocol in Kentucky and elsewhere: whether the method, as specifically applied in a given set of circumstances, would pose “a substantial risk of serious harm” to the inmate before he died.  In Emmett’s case, the state said, the federal judge used that same standard, and concluded that the evidence “demonstrated that the risk of pain to Emmett was ‘less than 3/100 of one percent (.03%), a risk that is not constitutionally significant.’ ”

Moreover, the state added, the judge found that ” ‘the record fails to demonstrate that the execution team’s experience, training and expertise are less than adequate to address any complications that may arise during the course of the lethal injection procedure.’ ”

Answering a complaint by Emmett’s lawyers that Virginia’s method involves the use of too little a dosage of a drug to produce genuine unconsciousness before lethal drugs are injected, the state said its dosage was more than adequate.

It also suggested that, since there is no real risk that Virginia death-row inmates would suffer any substantial risk of harm, the courts need not explore any alternative to the three-drug method. Emmett’s lawyers have suggested that the courts explore a massive dose of a single drug — the barbiturate used to put the inmate to sleep before lethal drugs are injected — as an alternative.

The District Court, the state countered, has already concluded that there is no need to look at any different technique.

The Circuit Court has scheduled a hearing for May 14 on the impact of the Baze decision on Virginia’s protocol in Emmett’s case.

Full post as published by SCOTUSBLOG on May 05, 2008 (boomark / email).