Infusion of lethal injection confusion

In light of the U.S. Supreme Court's decision to review the constitutionality of Kentucky's lethal injection protocol, much confusion exists over whether a moratorium on lethal injection executions exists in this country.

On the one hand, executions have been delayed in Arizona, Arkansas, Alabama, Texas, and Nevada as a direct result of the Court's decision to grant cert.

On the other hand, Georgia, Mississippi, Virginia and Texas and Alabama appear determined to proceed with executions. (We realize that Texas and Alabama appear to be contradicting themselves by being on both lists. But such is often the nature of things when it comes to implementation of the death penalty.)

Things could reach a certain state of clarity this week, with an execution scheduled for Wednesday in Virginia and another scheduled for Friday in Georgia. Definitely by Friday evening, we will have a much better idea of whether a moratorium exists. (Or, to put it more pessimistically, we could know by Wednesday evening whether one doesn't. exist.)

Anyway, all this by way of introducing an interesting op-ed that crossed our desk this afternoon. It's penned by Jack Payden-Travers, who doubles as executive director of Virginians for Alternatives to the Death Penalty and as an NCADP board member:

Oct. 16, 2007

Who Shall Live & Who Shall Die?
By Jack Payden-Travers, Director
Virginians for Alternatives to the Death Penalty

Once again Virginia is the site of national death penalty news. Two years ago it was a question of whether the Commonwealth would execute Robin Lovitt and earn the dubious distinction of holding the 1000th US execution since the reinstatement of capital punishment in 1976.

On Wednesday, October 17, 2007, Virginia is likely to be the state where the true impact of the US Supreme Court’s recent decision to review lethal injection as a method of execution is determined. Is there to be a national moratorium on executions or merely a stay that the Court intends only to affect certain states? Some 13 states have halted executions pending the Court’s ruling by June or July 2008 in Baze v Rees, a case wherein two Kentucky death row inmates have challenged their state’s use of lethal injection. The US Supreme Court has stayed one Texas execution since deciding to hear the Baze challenge, but the states of Virginia, Georgia and Mississippi have failed to stay executions already scheduled.

Executions are on hold in Alabama, Arizona, Arkansas, California, Delaware, Florida, Kentucky, Maryland, New Jersey, North Carolina, Nevada, Ohio, and Tennessee. Even Texas, with an execution record that quadruples Virginia’s, appears to have halted executions last week after the US Supreme Court stayed their execution of Carlton Turner on September 27th and the Texas Court of Criminal Appeals stayed the execution of Heliberto Chi on October 2nd. This week Nevada’s Supreme Court unanimously stayed all executions until their lethal injection procedures are reviewed.

Meanwhile, back home in Virginia, Chris Scott Emmett is scheduled to be the 99th “legal homicide.” Although Gov. Timothy Kaine personally is opposed to the death penalty, his office has stated he believes lethal injection to be constitutional. A Clemency Petition is presently before the governor, and a ruling on Emmett’s lethal injection appeal in the 4th Circuit Court of Appeals is awaited. It is unlikely that any final determination will be forthcoming until late in the day on Wednesday the 17th.

The question in my mind as I prepare for a Fill the Field vigil that evening in front of the death house at the Greensville Correctional Center is this: Why should it be legal to execute someone by lethal injection in Virginia but not in Maryland or North Carolina or Tennessee? What is peculiar to Virginia that permits us to proceed when other states are proscribed from using the same three-drug protocol? Indeed how can anyone be allowed to kill a human being with this chemical combination when the American Veterinary Medical Association in the year 2000 banned it as “cruel and inhumane” for use on cats and dogs? Is a human life worth less than a dog’s? Do not justice and common decency require that a human being be treated at least as well as an animal?

If the courts fail to stay Wednesday night’s execution it will be up to Gov. Kaine to decide if equal justice and fair play are to be the hallmarks of his administration or if an indefensible Virginia exceptionalism will continue to call the shots.