The US Fourth Circuit Court of Appeals ruled. Thursday that Virginia's method of execution by lethal injection does not violate the Eighth Amendment ban on cruel and unusual punishment. Virginia death row inmate Christopher Scott Emmett had challenged the procedure, arguing that there is an unacceptable risk that the drugs used in the lethal injection cocktail would cause pain before taking their full effect. The court based its ruling on the US Supreme Court decision in Baze v. Rees, in which the court held Kentucky's use of a three-drug lethal injection cocktail does not constitute cruel and unusual punishment. Judge William Traxler wrote the majority opinion, where he spoke about the similarities between Kentucky's lethal injection method approved in Baze and the method used in Virginia:
Virginia is one of the thirty states that has adopted the three-drug combination discussed in Baze. Although there are some minor variations, the protocol is largely identical to that of Kentucky and, like Kentucky's, includes a number of safeguards designed to ensure that the lethal chemicals are properly administered intravenously in a quick, humane fashion.
Having reviewed the record de novo, we conclude that Virginia's protocol is substantially similar to Kentucky's protocol and that Emmett has failed as a matter of law to demonstrate a substantial or objectively intolerable risk that he will receive an inadequate dose of thiopental, particularly in light of the training and safeguards implemented by Virginia prior to and during the execution process.
[I]t is enough to observe that Virginia is not constitutionally required to eliminate every possibility that pain might occur or every unnecessary risk that may exist. Because Virginia's rapid-flow induction procedure does not present a “substantial” or “objectively intolerable” risk of serious harm to Emmett, its use is a judgment call entrusted to the officials of the Department of Corrections.
According to the court, Virginia has executed 70 inmates using the lethal injection procedure.