A divided panel of the 4th U.S. Circuit Court of Appeals upheld yesterday the constitutionality of the lethal injection procedures Virginia uses to execute inmates sentenced to death.
The opinion, Emmett v. Johnson, had been watched closely because it was the first federal appellate decision since the U.S. Supreme Court decision, Baze v. Rees, that upheld the constitutionality of Kentucky’s method of executing inmates. Kentucky uses the same three-drug cocktail that Virginia uses, but the attorneys for Christopher Scott Emmett contended that there are enough differences in the way the drugs are administered to at least require a remand to district court for an evidentiary examination of those differences.
Fourth Circuit Judges William B. Traxler Jr. and Dennis C. Shedd concluded that the procedures were close enough that no remand is necessary.
Judge Roger L. Gregory dissented. He noted the recent observation by the Supreme Court that “[w]hen the law punishes by death, it risks its own sudden descent into brutality. . . .” Gregory said, “[F]ailing to remand to the district court for further fact-finding sends us tumbling faster into that abyss.”
By Alan Cooper