Court: Lethal injection OK in Va.

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By Dena Potter, ASSOCIATED PRESS

RICHMOND | A federal appeals court Thursday upheld Virginia's method of executing inmates by injection, ruling that it prevents them from experiencing excruciating pain.

In a 2-1 decision, a panel of the 4th U.S. Circuit Court of Appeals rejected condemned inmate Christopher Scott Emmett's argument that Virginia's procedure was unconstitutional.

Emmett's lawyers claimed the procedure risks substantial harm because it does not allow for a second dose of anesthesia to make sure an inmate is unconscious before paralyzing and heart-stopping drugs are injected.

The appeals court said there is no evidence that the first dose of anesthesia has ever failed to render an inmate unconscious.

The ruling came on the day another inmate - Kent Jermaine Jackson - was scheduled to die by injection for killing his 79-year-old neighbor.

Emmett is scheduled to be executed July 24 for the 2001 bludgeoning death of a co-worker in Danville.

The appeals court said Virginia's protocol for administering the three-drug concoction is "largely identical" to that of Kentucky, which was upheld by the U.S. Supreme Court in April.

In his dissent, Justice Roger Gregory argued that Virginia's protocol is different enough from Kentucky's to require further study.

Kentucky administers 3 grams of sodium thiopental, which results in a deep, comalike unconsciousness, while Virginia uses 2 grams.

Also unlike Kentucky, Virginia uses the so-called "rapid flow" technique, in which the lethal chemicals are administered quickly one after the other without pause. Kentucky corrections officials pause between the first and second doses of drugs to make sure the inmate is properly sedated.

While the majority found those to be "minor variations," Justice Gregory said they made a difference in whether an execution was humane.

"A cocktail of the very same three drugs has the potential to end in quiet, painless death or excruciating, silent torture depending upon how those drugs are administered," he wrote.

Emmett was convicted of fatally beating John Fenton Langley with the base of a brass lamp in a motel room, taking his wallet and using the money to buy crack cocaine. Mr. Langley and Emmett supposedly were friends and had been working together in Danville as part of an out-of-town roofing crew.