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Virginia's Reaction to Supreme Court Ruling

The gurney in the execution chamber at the Oklahoma State Penitentiary in McAlester, Okla. (AP photo, file)

By Warren Fiske
The Virginian-Pilot
April 16, 2008
RICHMOND

Virginia's moratorium on the death penalty was ended Wednesday by Gov. Timothy M. Kaine shortly after the U.S. Supreme Court upheld the constitutionally of lethal injections.

"In light of the Supreme Court ruling, executions will move forward according to the procedures that were in place prior to the court's decision," Gordon Hickey, Kaine's press secretary, said in a written statement. "The governor will continue to review any clemency requests on a case-by-case basis."

Kaine halted all executions on April 1 pending the high court's decision. The governor's action gave a temporary reprieve to Edward Nathaniel Bell, who had been scheduled to die April 8 for the 1999 murder of a Winchester policeman. Kaine, at the time, rescheduled Bell's execution for July 24.

The Supreme Court ruling is expected to end an unofficial national moratorium on the death penalty that has been in place since Sept. 25, when justices accepted appeals from two condemned Kentucky prisoners that lethal injections can cause extreme pain that constitutes cruel and unusual punishment. During the interim, no death sentences have been carried out in the United States, and at least 31 executions in 14 states have been postponed by governors or courts.

Lethal injection is the main method of execution in 35 of the 36 states that allow capital punishment. Nebraska uses electrocution.

By a 7-2 vote in the case, Baze v. Rees, the high court upheld Kentucky's execution procedures and ruled that the prisoners failed to prove that the risk of pain from lethal injections violate the Eighth Amendment.

Kentucky, Virginia and most other states allowing lethal injections use three drugs to induce death: sodium thiopental to render unconsciousness; pancuronium bromide to paralyze the muscles; and potassium chloride to cause heart failure.

Lawyers for the Kentucky prisoners argued that if the first drug doesn't work, the second one renders the prisoner unable to cry out or signal while the third drug is causing "an excruciating, burning pain."

The court, however, ruled that the risk of pain from improperly carried out lethal injections does not constitute cruel and unusual punishment.

"An execution method violates the Eight Amendment only if it is deliberately designed to inflict pain," Chief Justice John G. Roberts Jr. wrote in the decision.

"Some risk of pain is inherent in any method of execution - no matter how humane - if only from the prospect of error in following the required procedure," Roberts wrote. "It is clear, then, that the Constitution does not demand avoidance of all risk of pain in carrying out executions."

The Kentucky prisoners did not challenge their death sentences; they contended they could be executed in a way that offered less risk of a pain-causing mistake. Their lawyers argued that they be put to death more safely by a single, large shot of barbiturates.

Roberts, however, wrote that the high court "has never invalidated a state's chosen procedure for carrying out a sentence of death," as cruel and unusual.

Dissenting from the decision were Justices Ruth Bader Ginsburg and David H. Souter. Ginsburg wrote that she "would not dispose of the case so swiftly given the character of risk at stake." She favored sending the case back to Kentucky courts with instructions to examine the safety of its execution protocol.

Justice John Paul Stevens wrote an opinion agreeing with the majority decision but questioning whether capital punishment remains necessary when many states, including Virginia, can sentence murderers to life sentences in prison without parole.

The decision will not halt legal challenges to the safety of lethal injections in Virginia, said Jon Sheldon, a Fairfax County attorney who is president of Virginians for Alternatives to the Death Penalty. "Oddly enough, it may open the issue up," he said.

Sheldon said Virginia has a protocol that varies from Kentucky's and is open for legal interpretation. He said Kentucky uses 3 grams of anesthetic to render a prisoner unconscious whereas Virginia uses 2 grams. He said Kentucky, unlike Virginia, has a trained medical person by the inmate's side. And Kentucky halts the execution for a minute to ascertain that the anesthesia has taken effect while Virginia automatically administers the next drug.

Kaine would not comment on the high court's decision. A devout Roman Catholic, Kaine opposes the death penalty but promised to enforce the sanction when he ran for governor in 2005. During his time in that office, four executions have been carried out.

Although he has issued two stays in addition to Bell, Kaine has not commuted a death sentence.

Virginia has executed 98 people since 1976, second to Texas. Kevin Green, who killed a Mecklenburg County convenience store clerk in 1998, is scheduled to be executed on May 27.