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Posted April 17, 2008 | Copyright © The Northern Virginia Daily
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Court ruling puts Bell back in cross hairs

By Garren Shipley -- Daily Staff Writer

Executions in Virginia will resume as scheduled, as Democratic Gov. Timothy M. Kaine lifted a temporary moratorium on Virginia’s death penalty following a U.S. Supreme Court decision on Wednesday.

Kaine acted April 1 to delay the execution of Edward N. Bell, the Jamaican national convicted in 2001 of killing Winchester police Sgt. Ricky L. Timbrook, postponing his execution from April 8 to July 24.

The moratorium was designed to prevent a last-minute stay from the high court, which had acted to stop a number of executions until its decision was handed down in Baze v. Rees, a case in which two Kentucky inmates challenged the constitutionality of parts of that state’s lethal injection protocol.

Kentucky’s protocol — substantially similar to Virginia’s —is constitutionally sound, wrote Chief Justice John Roberts, delivering the opinion of the court. “Petitioners in this case — each convicted of double homicide — acknowledge that the lethal injection procedure, if applied as intended, will result in a humane death,” Roberts wrote.

Lethal injection is designed to be a painless death, not a foolproof guarantee of a painless death, he wrote.

“Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual,” he wrote.

Kaine acted quickly to lift his moratorium. “In light of the Supreme Court ruling, executions will move forward according to the procedures that were in place prior to the Court’s agreement to hear Baze last September,” wrote spokesman Gordon Hickey in a statement e-mailed to reporters.

Virginia uses the same three chemicals to kill condemned inmates as does Kentucky: sodium thiopental, an anesthetic to render inmates un-conscious; pancuronium bromide, which paralyzes voluntary muscles, including those that control breathing and facial expression; and potassium chloride, which stops the heart.

The two Kentucky inmates asked the high court to forbid the use of the second drug, as it could mask the pain and suffering an inmate would feel if the anesthetic were improperly administered.

But Kentucky “has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress,” Roberts wrote.

There is still room to challenge Virginia’s lethal injection protocols, according to Jon-athan P. Sheldon, an attorney on a number of death penalty cases.

“Baze puts lethal injection in Virginia in doubt because it sets a clear standard for lethal injection under the Eighth Amendment that is stricter than the standard that has been applied in Virginia,” he wrote in an e-mail to re-porters.

The drugs may be similar, but the procedures to administer them are different.

“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,” he wrote.

“It appears likely that the Virginia protocol will meet with a successful court challenge if the [Department of Corrections] or legislature does not undertake simple and obvious steps to implement a more humane protocol,” Sheldon wrote.

* Contact Garren Shipley at gshipley@nvdaily.com

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