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Lethal injection: a one-drug alternative?

In a case that may provide the first full exploration of how the Supreme Court’s April 16 ruling on the lethal drug execution method could affect other states’ protocols, lawyers for a Virginia inmate on Friday asked a federal appeals court to allow review of a possible one-drug approach in place of the three drugs commonly used now.

The Fourth Circuit Court in Richmond, VA, is exploring the case of Emmett v. Johnson (docket 07-18) in the wake of the Supreme Court’s ruling last month in Baze v. Rees (Supreme Court docket 07-5439) upholding Kentucky’s three-drug lethal injection protocol.  Both sides’ briefs on the impact of the Baze ruling on Virginia were due Friday; Emmett’s brief can be downloaded here; the blog is awaiting the state’s brief from counsel.  The Circuit Court has scheduled a hearing for Wednesday, May 14.

Under the three-drug method, the first drug is designed to anesthetize the inmate, the second to paralyze him, and the final drug to stop the heart and bring on death. That is the general approach used by all but one of the states that still have the death penalty.

In the Baze case, one alternative put before the Supreme Court was the use of only the first drug — thiopental — but in a significantly larger dose. It is suggested that such a massive dose of a barbiturate, if allowed to work for five minutes or longer, will cause death.

The Supreme Court said in Baze that it would not rule on the adequacy of that approach, because it had not been proposed to and reviewed by Kentucky courts. Emmett’s counsel did not ask the Fourth Circuit to approve that alternative, but rather to send that issue, along with the entire case, back to a U.S. District Court to probe more fully all of the facts surrounding the three-drug protocol specifically as used in Virginia.

As they had earlier, Emmett’s lawyers told the Circuit Court that Virginia’s specific method carries a greater risk of causing substantial pain to the death-row inmate than the Kentucky method upheld in Baze.  In addition, the new brief recounted a series of claimed flaws in the specific mode of carrying out death sentences in Virginia.  Unlike Kentucky, which has used its method of lethal drugs in only a single execution. Virginia’s has been used in 70, the brief said, and the history of those executions “reveals evidence of maladministration that the Baze Court…did not have before it.”

The brief argued that the evidence shows that members of the state’s execution team “have performed incompetently,” including a lack of understanding of how the drugs work, mistakes in inserting IV needles to deliver the drugs, team members’ inability to properly observe the inmate during the process, a lack of more dosage of thiopental if IV failure occurs, and a ban on all spoken communications among the team members as the process goes forward.

One day after the Fourth Circuit holds its hearing in the case on May 14, the Supreme Court at a regular Conference will consider a plea by the state of Virginia for the Justices to lift a stay of execution they had issued last October so that Virginia could go ahead and schedule a new execute date for Emmett.

There has not been an execution in the U.S. since last September, when the Court agreed to hear the Baze case.  The Court has yet to clear the way for any execution it had blocked. It appears, though, that the first execution since Baze was decided will occur — unless newly stayed by some court — next Tuesday in Georgia, where Earl Lynd is to be executed by lethal drugs.