Fourth Circuit upholds Virginia's lethal injection protocol

If you are in the mood to spend your afternoon reading about lethal injection law and procedure, the Fourth Circuit serves up the goods.  In Emmett v. Johnson, No. 07-18 (4th Cir. July 10, 2008) (available here), a split panel affirms the lethal injection protocol used by the state or Virginia.  Here is how the majority concludes (after 40+ pages of discussion):

Virginia's protocol for lethal injection is substantially similar to that approved by the Supreme Court in Kentucky. The lethal injection procedures are supervised by Department officials and the execution is carried out by experienced, well-trained personnel.  And, in the 70 executions previously conducted by Virginia, there have been no reported problems....

Because Emmett has failed to produce evidence sufficient to create a genuine issue of material fact that would demonstrate a “substantial” or “objectively intolerable” risk of harm during his execution, the district court did not err in granting summary judgment to the defendants.

Writing in dissent, Judge Gregory concludes his opinion with this paragraph:

In short, the majority effectively grants summary judgment on a crucial issue never presented to the district court: whether material differences exist between Kentucky's and Virginia's protocols.  The mere fact that both states use the same three chemicals to execute inmates does little to establish that the protocols are substantially similar, let alone “largely identical,” when such glaring differences exist as to how the executioner administers sodium thiopental, the single drug vital to the procedure's humanity.  Recently, the Supreme Court observed that “[w]hen the law punishes by death, it risks its own sudden descent into brutality. . . .” Kennedy v. Louisiana, No. 07-343, 2008 U.S. LEXIS 5262, at *24 (June 25, 2008).  And failing to remand to the district court for further fact-finding sends us tumbling faster into that abyss.