| Baze puts lethal injection in Virginia in doubt |
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Baze puts lethal injection in Virginia in doubt because it sets a clear
standard for lethal injection under the Eighth Amendment that is easier for
inmates to meet than the standard that has been applied in Virginia and that
Virginia cannot pass because of its indefensible protocol.
In Baze, the Supreme Court
(through 7 opinions!) affirmed the judgment of the lower court finding that
Kentucky's administration of lethal injection does not violate the Eighth
Amendment. In doing so, the Court attempted to clarify one major issue: the
Eighth Amendment Standard. But because Baze did not challenge a number
of aspects of lethal injection, and because the administration of lethal
injection in Kentucky has many more safeguards than many other states, the
decision ultimately re-opens the lethal injection challenges in many
states.
The Eighth Amendment standard
articulated by the Justice Roberts' plurality in Baze appears clearly
easier for inmates to satisfy than the "deliberate indifference" standard used
by the VA courts. In addition, Kentucky uses two key safeguards lacking in
Virginia: 1) medically trained IV team members; and 2) monitoring of anesthesia
depth of the inmate after anesthesia and prior to continuing the
drugs.
Yet Baze only challenged the
administration of the drugs, not the drugs themselves, so that issue is
also open to a likely winning challenge because of the inappropriateness of
sodium thiopental and pancuronium. In addition, a challenge to the drugs in VA
is likley to be more succesful than other states because Virginia uses the least
amount of thiopental (2g vs. 3g in Baze) of any state.
Baze also did not address the issue
of cut-downs. Virginia's response to the issue of cut-downs has been typical:
secrecy. Instead of addressing the issue in a constitutional and humane way,
Virginia has removed cut-downs from its lethal injection procedure as a
strategy, and claims they are not necessary. Yet Virginia continues to practice
cut-downs (surgical procedure to allow IV access) in lethal injection under the
cover of secrecy.
The Baze court, through its
multiple opinions, clearly anticipates further lethal injection litigation.
Because Virginia courts have been using an incorrect and strict legal standard,
and because the protocol in Virginia is perhaps the worst in the nation because
of the 2g grams of thiopental and the lack of medical training of the
executioners, it appears likley that the Virginia protocol will meet with a
successful court challenge if the DOC or legislature does not undertake simple
and obvious steps to implement a more humane protocol.
-- Jon Sheldon
Board President, VADP
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