Legal Opinions - U.S. 4th Circuit Court of Appeals Case Summaries:

Daily Record, The (Baltimore), Aug 4, 2008

Constitutional Law

Eighth Amendment

BOTTOM LINE: District court properly granted summary judgment to Department of Corrections where death row inmate failed to produce evidence sufficient to create issue of material fact in claiming that Virginia's lethal injection method violated the Eighth Amendment.

CASE: Emmett v. Johnson, US4th No. 07-18 (decided July 10, 2008) (Judges TRAXLER & Shedd) (Judge Gregory, dissenting).

COUNSEL: Matthew S. Hellman, Jenner & Block, Washington, DC, for Appellant. Richard Carson Vorhis, Office of The Attorney General of Virginia, Richmond, VA, for Appellees.

FACTS: Christopher Scott Emmett was convicted by a jury of the robbery and capital murder of a coworker, and sentenced to death in 2001. The Supreme Court of Virginia affirmed, and the United States Supreme Court denied certiorari. After unsuccessfully challenging his conviction and sentence in state and federal habeas proceedings, the state scheduled Emmett's execution for June 13, 2007.

On April 19, 2007, Emmett initiated an action under [section]1983, asserting that the lethal injection method used by Virginia constituted cruel and unusual punishment prohibited by the Eighth Amendment.

The district court denied Emmett a preliminary injunction against his impending execution, and the United States Supreme Court denied his request for a stay of execution. See Emmett v. Kelly, 127 S. Ct. 2970 (2007). However, because the Supreme Court had not yet acted upon Emmett's then-pending petition for certiorari review of his federal habeas petition, the Governor of Virginia granted Emmett a temporary reprieve from execution until October 17, 2007. The Supreme Court denied his certiorari petition on October 1, 2007.

In the meantime, the district court granted summary judgment to the DOC in Emmett's [section]1983 action, which he appealed to the 4th Circuit. On the same day, the Supreme Court granted certiorari to review a similar [section]1983 challenge to Kentucky's lethal injection method. See Baze v. Rees, 128 U.S. 34 (2007). The Supreme Court also granted Emmett a temporary stay of his scheduled October 17 execution pending final disposition of the appeal by our court or further order of the Supreme Court. See Emmett v. Johnson, 169 L. Ed. 2d 327 (2007).

On April 16, 2008, the Supreme Court issued its opinion in Baze v. Rees, 128 S. Ct. 1520 (2008), rejecting the challenge to Kentucky's procedure. On May 19, 2008, the Court granted the DOC's motion to vacate the October 17 stay of Emmett's execution in light of that decision, see Emmett v. Johnson, No. 07A304, 2008 WL 2078624 (May 19, 2008), and Emmett was scheduled for execution on July 24, 2008.

Emmett then brought an action in district court, under 42 U.S.C.A. [section]1983, asserting that the Commonwealth of Virginia's method for lethal injection violated his right to be free of cruel and unusual punishment guaranteed by the Eighth Amendment to the United States Constitution.

The district court granted summary judgment to the Department of Corrections.

Emmett appealed to the 4th Circuit, which affirmed.

LAW: The Eighth Amendment, applicable to the states through the Fourteenth Amendment, prohibits execution procedures that inflict cruel and unusual punishment. See Baze, 128 S. Ct. at 1530. Challenges to execution procedures are properly raised by condemned inmates under [section]1983. See Hill v. McDonough, 547 U.S. 573, 576 (2006).

In Baze v. Rees, the Supreme Court rejected a nearly identical challenge by condemned inmates to Kentucky's lethal injection method, which also utilized a three-drug combination consisting of 3 grams of thiopental, 50 milligrams of pancuronium bromide, and 240 milliequivalents of potassium chloride. See Baze, 128 S. Ct. at 1528.

Like Emmett, the Baze petitioners admitted that proper administration of the thiopental would eliminate any meaningful risk of pain from the subsequent injections of pancuronium bromide and potassium chloride, but claimed there was a significant and unnecessary risk that the thiopental would not be properly administered to achieve its intended effect. Id. at 1530-31. The Court, however, rejected the petitioners' proposed "unnecessary risk" standard, id. at 1532, and held instead that condemned inmates must demonstrate "a substantial risk of serious harm," or "an objectively intolerable risk of harm that prevents prison officials from pleading that they [are] subjectively blameless for purposes of the Eighth Amendment," id. at 1531.

There was, however, one immediately obvious difference between the administrations of the lethal injection procedures in Virginia and Kentucky -- Virginia has a much more extensive historical record of administering the death penalty by lethal injection, having conducted 70 executions by lethal injection compared to the single lethal injection conducted by Kentucky prior to the Baze decision.

Seizing upon that distinction, Emmett argued that Virginia's method of lethal injection is not substantially similar to that of Kentucky because the execution records and history demonstrate risks that were not present in Baze. More specifically, Emmett asserted that Virginia's rapidflow administration of the three-drug combination created the possibility that the pancuronium bromide and potassium chloride would take effect before the thiopental has taken full effect; that there is historical evidence of prior inmates exhibiting signs of not receiving a full dose of thiopental, prompting Virginia to give a second dose of pancuronium bromide and/ or potassium chloride but not thiopental; and that there was historical evidence of other errors in the implementation of the protocol.