Virginia could end up adopting a different method of lethal injection, following a line of questioning from a 4th Circuit judge during a death-penalty case.
As Washington defense 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 of Christopher Scott Emmett was opposition to the death penalty or establishment of 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 of the 4th U.S. Circuit Court of Appeals.
“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, 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’s argument. If the state would agree to execute Emmett with a larger dose of an anesthetic instead of the three-drug procedure used in Virginia and most other states, “this case would go away,” Hellman said.
The case is the first opportunity for a federal appellate court to further explore the constitutionality of methods of lethal injection since the U.S. Supreme Court decided Baze v. Reees, 128 S.Ct. 1520 (2008), last month.
The court upheld the constitutionality of Kentucky’s procedure, which is similar in many ways to that used in Virginia.
So similar, Vorhis argued, that it re-quired affirmance of the dismissal of Em-mett’s case by U.S. District Judge Henry E. Hudson.
In both states, the defendant is first given an anesthetic (sodium thiopental) to sedate him, then a drug that paralyzes him (pancuronium bromide) and finally a drug that stops the heart (potassium chloride).
But there are significant differences in the details of the way the drugs are administered and in the posture of the death penalty in the two states, Hellman said.
Kentucky administers a dose of thiopental 50 percent greater than that used in Virginia, which makes it more likely that the inmate will be fully sedated and not experience the pain that he could feel if the other two drugs take effect before the sedation is complete, Hellman argued.
Moreover, Hellman said, the case before the Supreme Court was almost a hypothetical because Kentucky has executed only one person by lethal injection. By contrast, Virginia has used the procedure on 70 murderers, and variations in the length of time it took them to die – as much as 13 minutes – suggest that there were errors in administering the drugs that could have caused excruciating pain.
Virginia’s method also differs from Kentucky’s in requiring administration of the second and third drugs, but not the first, if death does not occur as quickly as expected, Hellman said. Kentucky’s protocol re-quires the administration of all three drugs again.
The Virginia procedure creates the possibility that an inmate who was not completely sedated will experience even more pain before the additional doses become fatal, Hellman argued.
Vorhis responded that “Virginia has never had anything to suggest that a defendant was conscious” when the second and third drugs were administered. Most inmates died within 4 1/2 minutes. Those that took longer could be explained by the slowing of the circulatory system that occurs during the administration of the first two drugs, he said.
Emmett was sentenced to death for the 2001 robbery and bludgeoning death of a co-worker in Danville.