By Robert Barnes
Washington Post Staff Writer
Wednesday, April 30, 2008
The U.S. Supreme Court will consider next month whether to allow Virginia to set an execution date for a death row inmate who contends that the commonwealth's lethal injection procedures do not meet the standards that the court recently found constitutional.
Virginia Attorney General Robert F. McDonnell (R) has asked the court to vacate the stay of execution it granted Christopher Scott Emmett last fall, after the court agreed to hear a case challenging the constitutionality of Kentucky's lethal injection procedure.
The court ruled 7 to 2 in favor of Kentucky, and Virginia contends that because its procedures are "virtually identical" to those the court found constitutional, Emmett's stay should be vacated and the state should be allowed to set an execution date.
But Emmett's attorneys told the court Monday that the stay should remain in place while the U.S. Court of Appeals for the 4th Circuit in Richmond reviews the case. The appeals court has scheduled a hearing May 14 on Emmett's case and has asked both sides for briefs that take into consideration the Supreme Court's April 16 ruling in Baze v. Rees.
"The state's motion is an ill-founded attempt to disrupt the orderly consideration of Emmett's issues," said a brief filed with the Supreme Court by the Virginia Capital Representation Resource Center.
The federal government and almost all states use the same three-drug combination to execute the condemned. The Supreme Court ruled that proper administration of the protocol does not carry a risk of substantial pain so great as to violate the Constitution's ban on cruel and unusual punishment.
The court left the door slightly ajar for inmates to challenge state procedures, but it added that "a state with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk" that would be adequate to justify a stay of execution.
Emmett's attorneys called Virginia's procedure "unique and uniquely dangerous." Like others, it administers sodium thiopental, which induces unconsciousness; pancuronium bromide, which paralyzes the muscles; and potassium chloride, which causes cardiac arrest.
The latter two drugs can cause excruciating pain if the first drug is not administered properly. Emmett's attorneys say that when Virginia inmates take longer to die than expected, second doses of the latter drugs are administered, but not thiopental.
A federal District Court upheld the use of lethal injection for Emmett, who bludgeoned a co-worker to death in Danville in 2001.
The legal process in Virginia is likely to be repeated across the country as states move to restart the execution process that was halted when the court accepted the Baze case. The nation's last execution occurred in September. A Georgia inmate is scheduled to be executed May 6.