I. OVERVIEW

There are two methods for execution in Virginia, lethal injection and electrocution. Va. Code Ann. § 53.1-234. The inmate is to choose the method, but if he   fails to do so at least fifteen days prior to the scheduled execution, he will be executed by lethal injection. Id.

Challenges to both lethal injection and electrocution must be made at the trial level.  See Orbe v. Johnson, 267 Va. 568, 569 (2004)(holding in an inmate's 1983 action that such challenges "should have been raised before the trial court in Orbe's criminal case and on direct appeal from that judgment").  The opinion does not specify whether the objection should be raise at the pre-trial or pre-sentencing stage.  The safest approach would raise the issue in a pre-trial motion and request an evidentiary hearing.  If the request is denied, the defendant should still make a proffer of evidence to preserve the issue for appeal.  The defendant will have to provide evidence to support at least these points:  (1) that electrocution  and lethal injection present an objectively intolerable risk of pain while a feasible alternative exists; and (2) that empirical data shows that there is a substantial risk of severe pain, in violation of Baze v. Rees.

II. THE WAIVER PROBLEM

Background

When an inmate is given a choice of methods of execution, courts have held that the choice of one method can waive any challenge to the constitutionality of that method.  In Stewart v. LaGrand, 526 U.S. 115 (1999), the statutory default in Arizona was lethal injection, but allowed the inmate to choose lethal gas.  Id. at 119.  The Court held that by affirmatively choosing lethal gas, the inmate waived any challenge to that method of execution under the Eighth Amendment.  Id.  Take note, however, that the Court continued, "To hold otherwise, and to hold that Eighth Amendment protections cannot be waived in the capital context, would create and apply a new procedural rule in violation of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)." Id.  Since LaGrand was decided at the federal habeas stage, if the argument against waiver is presented at the trial level and on direct appeal, LaGrand can be distinguished.

Virginia extended LaGrand in Orbe v. Johnson, 267 Va. 568, 601 S.E.2d 543 (2004), a § 1983 action.  There, the Virginia Supreme Court held that failing to choose a method of execution, and allowing the statutory default of lethal injection to apply waived the inmate's right to challenge lethal injection under the Eighth Amendment.  Id. at 570.

In addition, the Virginia Supreme Court has held that when a constitutional method of execution is available, he cannot challenge the alternative.  See Bell v. Commonwealth, 264 Va. 172, 203, 563 S.E.2d 695, 715-16 (2002), cert. denied, 537 U.S. 1123 (2003).  The Court held: "Bell has the right to choose whether his execution will be by lethal injection or by electrocution. Because Bell has that choice and we have already ruled that execution by electrocution is permissible under the Eighth Amendment, it would be an unnecessary adjudication of a constitutional issue to decide whether lethal injection violates the Eighth Amendment."  Id. at 203.  The Court affirmed the Bell rationale and result in a similar challenge in Porter v. Commonwealth, 276 Va. 203, 237-38, 661 S.E.2d 415, 432 (2008).

Routes of Attack

There are four points that must be raised and argued to avoid the waiver problem.  First, the challenge should be raised at the trial level, preferably at the pre-trial stage.  Case law has stressed that waiver is a result of the inmate's choice or submission to the statutory default.  If the defendant has not yet been sentenced, he cannot have chosen a method of execution.  It should be stressed that the defendant seeks to clarify what constitutional options are available before he makes a choice. 

Second, it should be noted that the challenge to lethal injection in Baze v. Rees, 128 S.Ct. 1520, 1532 (2008) was heard by the United States Supreme Court on the merits, although the inmate there also had a choice between methods of execution.

Third, both electrocution and lethal injection should be challenged simultaneously.  This will distinguish your case from Bell and Porter.  In Bell, the defendant challenged only lethal injection, the availability of electrocution waived his challenge.  In Porter, although the defendant challenged both methods, the Court did not evaluate electrocution under the fact-specific Baze test, but merely relied on outdated precedent.  Therefore, a challenge to both would force the court to address the merits of at least one of the two methods of execution before finding that the defendant waived a challenge to the other.

Fourth, the defendant should request an evidentiary hearing on both the challenges to electrocution and lethal injection.  Factfinding on the degree of risk and the degree of harm will need to be in the record for a challenge at trial or on appeal to succeed.  It should be noted that holding an evidentiary hearing is within the discretion of the trial court.  Even if the trial judge feels bound by precedent, he or she may be persuaded to let the defendant establish a record as an opportunity for the appellate courts to reexamine outdated precedent.¹

1. An  example of this approach can be found in State v. Mata, 745 N.W.2d 229 (Neb. 2008).  There, the trial court held an evidentiary hearing, but denied the defendant's motion, being bound by precedent.  On direct appeal, the Nebraska Supreme Court had sufficient factfinding before it to hold that electrocution was cruel and unusual punishment under the Nebraska Constitution.

III. LETHAL INJECTION

The Department of Corrections is responsible for determining the procedures for execution by lethal injection. Id. The Department of Corrections has set out its lethal injection procedure in the Divisional Operating Procedure 426.  Emmettt v. Johnson, 532 F.3d 291, 293 (4th Cir. 2008).  Currently, a combination of three drugs are used: 2 grams of sodium thiopental (or a similar sedative), 50 milligrams of pancuronium bromide (or a similar neuromuscular blocking agent), and 240 milliequivalents potassium chloride. Id. at 294. Baze v. Rees, 128 S. Ct. 1520 (2008) set the new standard for challenges to lethal injection.  A method of execution violates the Eighth Amendment if it presents a "'substantial risk of serious harm," [or] an 'objectively intolerable risk of harm.'"  Id. at 1531.  A proposed alternative must "be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain."  Id. at 1532.  The Court rejected the petitioners' "unnecessary risk" standard and the dissent's "untoward risk" standard.  Id. at 1531.

In Baze, petitioners challenged Kentucky's lethal injection protocol as violating the 8th Amendment's ban against cruel and unusual punishment.  The trial court held extensive hearings on the risk of pain under the three-drug scheme used by Kentucky.  Id. at 1526.  The trial court rejected Baze's claim, which was affirmed by the State Supreme Court and ultimately, the United States Supreme Court.  Id. at 1526.

Baze conceded that if Kentucky's lethal injection procedure was performed properly, and the sodium thiopental anesthetizes the inmate as intended, an execution would be humane and constitutional.  Id. at 1530.  Baze insisted, however, that the significant risk that the procedures would not be followed properly and have their intended effect rendered the procedure unconstitutional.  Id.  Particularly, Kentucky's procedures failed to adequately confirm that the inmate was unconscious and pain-free.  Id.  The administration of the second and third drugs to a conscious patient would result in excruciating pain.  Id.  The Court found that the petitioners did not carry their burden.  Id. at 1533-34.  The Court noted that it is difficult to identify a risk as "objectively intolerable" when it is widely used, and that no state has ever used petitioners proposed alternative one-drug protocol.  Id. at 1535.  The Court rejected the idea that because the State has failed to take additional safeguards that the procedure is rendered unconstitutional.  Id. at 1537.

The Court noted that: "A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard."  Id. at 1537.  This statement would probably be considered nonbinding dicta, but would be persuasive to any court considering a lethal injection challenge.  The Court provides no guidance on what "substantially similar" means in this context.  The Kentucky procedure used three drugs: sodium thiopental, pancuronium bromide and potassium chloride.  Id. at 1528.  According to the Court, "at least 30" states and the federal government use this same three-drug combination.  Id. at 1527.  Other procedures may be able to be distinguished based on the amount of the drugs used, the personnel used in the process, the method of identifying if the inmate is unconscious, whether there is a delay after administering the first drug, the procedure used if the inmate is still living after a set amount of time, and how and who observes the inmate.

In Porter v. Commonwealth, 276 Va. 203, 237 (2008), the Virginia Supreme Court rejected a challenge that the state's lethal injection procedure is unconstitutional because of the inadequate training of the staff and inherent deficiencies of the drugs used.  The Court first relied on the waiver argument, described below, but also cited to Baze.  According to the Court, Porter had conceded that the Virginia protocol was "materially similar" to the Kentucky protocol.  Id. at 238.  The trial court, however, did not have hearings or make evidentiary findings on the protocol.  The Virginia Supreme Court also found that Virginia Department of Corrections is exempt from the Virginia Administrative Process Act and rejected petitioner's claim to invalidate the execution procedures under the Act.  Id. at 238-39.

In Emmett v. Johnson, 532 F.3d 291; (4th Cir. 2008), an inmate brought a federal § 1983 challenge asserting that Virginia's method of lethal injection violated the 8th Amendment.  The Fourth Circuit affirmed the District Court's grant of summary judgment to the defendants.  Emmett conceded that the proper administration of procedures would result in a humane death, but argued that Virginia's current procedures carried an unacceptable risk that the inmate would experience pain.  Id. at 296-97.  The Fourth Circuit characterized this claim as "nearly identical" to the challenge in Baze v. Rees.  Id. at 298.  The Fourth Circuit ruled that Emmett did not meet his burden of showing a substantial or intolerable risk from the existing procedures.  Id. at 299.  The court also found that Virginia's procedures were "substantially similar" to Kentucky's procedures outlined in Baze.  Id. at 300.  The court made this finding despite several differences it characterized as "minor variations": (1) Virginia uses 2 grams of the sedative sodium thiopental instead of Kentucky's 3 grams, (2) Virginia uses a "rapid-flow" procedure instead of waiting several minutes for the sodium thiopental to take effect like Kentucky does, and (3) in Virginia if the first 3 drug combination has not taken effect, another dose of the pancuronium bromide and potassium chloride are administered, but not sodium thiopental, unlike Kentucky's procedure.  Id. at 299.  The court rejected Emmett's attempts to point to isolated incidents as demonstrating significant risk.  Id. at 306.
 
Virginia's protocol creates several risks of severe pain that are absent in Kentucky's protocol, upheld in Baze.  First, Virginia does not assign certified medical personnel to the execution team.  Second, Virginia has no known training for its personnel to ensure proper insertion of the IV.  Third, the team administering the drugs, instead of being present, only observe the inmate through a portal.  This prevents them from properly assessing the depth of anaesthesia resulting from the thiopentol and from monitoring any problems with the IV line.  Next, the Virginia protocol provides no redundancy – an unsuccessful first attempt, only the second two drugs, and not the anaesthetic, are administered again.  Finally, although Kentucky has only performed one execution by lethal injection, Virginia has performed over seventy, and accumulated a record of disturbing evidence that may show a substantial risk of severe pain.

IV. ELECTROCUTION

Legal Background

The only applicable federal precedent dates to 1890.  In In re Kemmler, 136 U.S. 436, 447-48 (1890), the Supreme Court held that the Eighth Amendment did not prevent the states from using electrocution as a means of execution, since the intention was to provide a more humane method of inflicting death.  The opinion did not rely on any factual findings.
Virginia adopted Kemmler in Hart v. Commonwealth, 131 Va. 726, 743 (1921), affirming the use of electrocution on a condemned prisoner+ convicted of attempted rape.  The Virginia Supreme Court found no facts, adopting the Kemmler view.  The Virginia Supreme Court since then has refused to analyze challenges to electrocution.  See, e.g. Commonwealth v. Martin, 221 Va.  436, 439 (1980) (rejecting a challenge to electrocution solely by reference to Hart and Kemmler), Porter v. Commonwealth, 276 Va. 203, 237 (2008).  The courts' analysis of electrocution in Virginia have ignored both changes in Eighth Amendment jurisprudence and  accumulating scientific understanding of the process.  See, e.g. id. (discussing electrocution by reference to Kemmler and Martin).  Justice Souter noted the obsolescence of Kemmler when he wrote:

The Court has not spoken squarely on the underlying issue since In re Kemmler, and the holding of that case does not constitute a dispositive response to litigation of the issue in light of modern knowledge about the method of execution in question[, electrocution].

The Challenge to Electrocution

Evolving Standards of Decency

The Baze majority did not apply the Trop "evolving standards of decency" test to that challenge to a method of execution.  However, it did survey the state legislatures to determine whether the method of electrocution is "objectively intolerable."  See Baze v. Rees, 128 S.Ct. 1520, 1533 (2008)  As of February 2008, there is no state that uses electrocution as its sole or even default method of execution.  From a high of 26 states in 1949, the mandatory use of electrocution has steadily and consistently declined, and now no jurisdiction mandates electrocution as its method of execution. State v. Mata, 745 N.W.2d 229, 275, 281(Neb. 2008)(holding that electrocution violates the Nebraska state constitution, which mirrors the Eighth Amendment).  Furthermore, only four states continue to provide electrocution as alternative method of execution for crimes committed today, and only at the request of the inmate.  See Ala.Code §§ 15-18-82 to 82.1 (Supp.2007); Fla. Stat. § 922.105 (2006); S.C.Code Ann. § 24-3-530 (2007); Va.Code Ann. § 53.1-234 (Lexis Supp.2007).  The scale and direction of this change indicates that electrocution not only violates evolving standards of decency, but is an objectively intolerable method of execution.

Substantial Risk of Severe Pain and Mutilation

Aside from the risk of subjective pain, at least one state court has declared electrocution cruel and unusual because of the physical mutilation it necessarily entails.  See Dawson v. State, 274 Ga. 327, 335 (2001)("death by electrocution, with its specter of excruciating pain and its certainty of cooked brains and blistered bodies, violates the prohibition against cruel and unusual punishment in Art. I, Sec. I, Par. XV of the Georgia Constitution.")