Lethal Injection Review in Fourth Circuit

The Washington Post reports, "Lethal Injection Methods Weighed," by Jerry Markon.

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.

And:

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?"

"Virginia, Delaware death row inmates challenge lethal injections," is AP's dispatch via Google.

Attorneys for death row inmates in Virginia and Delaware argued Wednesday that their states' lethal injection procedures need changing despite a recent U.S. Supreme Court ruling that upheld the most widely used method of execution.

Some of the 35 states that use lethal injection moved swiftly to schedule executions put on hold for seven months while the Supreme Court considered a Kentucky case arguing that lethal injection was cruel and unusual punishment. Georgia became the first to kill an inmate last week.

But death row inmates in other states continue to press legal challenges on similar grounds, and federal courts held separate hearings Wednesday on two such cases.

In Delaware, death row inmates have filed a class-action lawsuit claiming the state's lethal injection method is substantially different from the Kentucky method.

In the Maryland Daily Report, Alan Cooper writes, "4th Circuit hears lethal injection case."

The case took an unexpected turn, though, with questioning by one of the judges leading to the possibility that Christopher Scott Emmett could be injected with a different drug than the commonly used combination.
 
As Washington attorney Matthew S. Hellman was describing what he saw as Virginia’s “unique and uniquely dangerous” lethal injection procedure, Judge Dennis C. Shedd interrupted and asked whether the real issue in the case was opposition to the death penalty or a humane method of carrying it out.
 
“What if the state agreed to your protocol? Would that eliminate an appeal?” asked Shedd, who is hearing the case along with Judges William B. Traxler Jr. and Roger L. Gregory.
 
“It is possible that it could be worked out,” Hellman responded. “We haven’t explored that possibility.” 
 
Shedd pressed his point with Senior Assistant Attorney General Richard C. Vorhis, who defended Virginia’s method of execution.
 
“If the real purpose is not to fight the death penalty, but a humane death,” Shedd asked, “why not give the inmate what he wants?”
 
Vorhis said he would have to discuss the issue with state officials. But if the method Hellman endorsed is scientifically sound, “I believe they would adopt it wholeheartedly,” he said.
 
When he stood for his rebuttal argument, Hellman said he had discussed the issue with his colleagues at the counsel table during Vorhis’ argument. If the state would agree to execute Emmett with a large dose of an anesthetic instead of the three-drug cocktail used in Virginia and most other states, “this case would go away,” Hellman said.
 
The 4th Circuit’s published opinions are binding in Maryland as well as Virginia, North and South Carolina and West Virginia.

The lethal injection index, with full coverage of Baze v. Rees, is here.