Lethal Injection Methods Weighed

Attorneys for death row inmate Christopher Emmett call the drug cocktail unnecessarily cruel.
Attorneys for death row inmate Christopher Emmett call the drug cocktail unnecessarily cruel. (Anonymous - AP)
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By Jerry Markon
Washington Post Staff Writer
Thursday, May 15, 2008

RICHMOND, May 14 -- A federal appeals court took up an issue Wednesday with broad implications for how executions will be carried out nationwide: whether Virginia's method of lethal injection induces an agonizing death.

The debate before the U.S. Court of Appeals for the 4th Circuit came in the case of Virginia death row inmate Christopher S. Emmett. His lawyers are challenging the state's lethal injection procedures, saying that prisoners are not fully anesthetized before being administered drugs that can cause excruciating pain. The Virginia attorney general's office said the state's executions are humane and constitutional.

Lawyers said it was the first time an appeals court has debated lethal injection since the U.S. Supreme Court ruled in April that the three-drug protocol most commonly used in executions by states and the federal government is not cruel and unusual punishment. Similar hearings are expected across the country, exploring how the court's decision will be carried out.

"The death penalty is constitutional. It's constitutional to use lethal injection. That's been established," said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. "Now, we're getting down to the details. Should lethal injection be done the way it's been done?"

At issue is whether Virginia's method is constitutional in light of the Supreme Court decision. Last year, a federal judge upheld Virginia's method before the Supreme Court made its ruling. Emmett's attorneys are asking the three-judge 4th Circuit panel to send his case back to the judge for further review.

Attorneys for Emmett, who fatally bludgeoned a co-worker in Danville in 2001, said that Virginia gives inmates too small a dose of a drug that renders them unconscious, and then doesn't give it time to take effect before administering drugs that induce paralysis and death. "There is no reason whatsoever that a death should be torturous," said Matthew S. Hellman, an attorney for Emmett.

Richard C. Vorhis, senior assistant attorney general, said Virginia's three-drug method is virtually identical to the Kentucky procedure that the Supreme Court found constitutional. He said the state takes every possible precaution against undue suffering. "In 70 executions in Virginia, we've never had any indication that the inmate is anything other than unconscious," Vorhis said.

The Supreme Court is scheduled to consider in its private conference Thursday the separate question of whether a date can be set for Emmett's execution. Virginia Attorney General Robert F. McDonnell has asked the court to vacate the stay of execution it granted Emmett last fall, before ruling in the Kentucky case.

A de facto moratorium on executions had been in place before the Supreme Court decision, but Georgia executed William E. Lynd last week.

It was unclear how the 4th Circuit will rule in the Virginia case, but Judge Roger L. Gregory aggressively questioned state lawyers. He said prison officials rely on "peeping through a hole, a curtain, to see if you're asleep" to determine whether an inmate is fully unconscious.

"We know that Virginia is effective at death because all of these inmates have died," Gregory said. "The question is, are you effective at preventing the excruciating death?"

Judge Dennis W. Shedd explored a compromise suggested by Emmett's lawyers as more humane: replacing the three-drug protocol with a powerful dose of a single barbiturate. "That's clearly a policy choice the state can make," said Shedd, who asked Emmett's attorneys whether they would drop their appeal if the state switched to that method. They said they would.

But the single-drug idea has not been tried, and Emmett's lawyers acknowledged that they couldn't say whether it is constitutional. Vorhis questioned whether it would be scientifically valid.

"We can't just take whatever procedure they propose," Vorhis said. "We can't just willy-nilly accept anything that comes down the pike.''

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