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Denno on Lethal Injection

By Lawrence Solum

Deborah W. Denno (Fordham University School of Law) has posted The Future of Execution Methods (THE FUTURE OF AMERICA'S DEATH PENALTY: AN AGENDA FOR THE NEXT GENERATION OF CAPITAL PUNISHMENT RESEARCH, Charles S. Lanier, William J. Bowers & James R. Acker, eds., pp. 483-497, Carolina Academic Press, 2009) on SSRN. Here is the abstract:

Lethal injection, the most common method of execution in the United States, is at a troubling impasse. Inmates continue to challenge the method on the grounds that it is an inhumane and unconstitutional method of execution, and states continue to cling to scientifically uninformed procedures in an effort to ensure the death penalty?s survival generally. In a landmark 2006 ruling, however, federal district court judge Jeremy Fogel stated that lethal injection could be ?fixed.? Nevertheless, this Chapter declines to join the search for possible solutions without a complete understanding of the problems associated with lethal injection. Accordingly, this Chapter makes two recommendations.

First, this Chapter recommends that states provide an adequate amount of time for in-depth studies of the proper implementation of lethal injection. Although lethal injection?s link to the medical profession can make executions appear more humane and palatable, the image of a serene, peaceful death shields states from carefully reviewing how lethal injection is implemented. Indeed, evidence suggests that lethal injection protocols have been adopted and modified speedily and without the support of medical or scientific inquiry. >br>
Second, this Chapter recommends that states make their lethal injection procedures transparent. In addition to evidence suggesting that states routinely fail to adhere to their own vaguely written procedures, states have begun withdrawing information in the face of challenges to their procedures. Indeed, the author?s 2005 study found that many state lethal injection protocols were not available to the public. Such secretiveness reinforces the belief that states lack the ability or willingness to conduct executions in a manner that is consistent with Constitutional mandates.

Full post as published by Legal Theory Blog on April 20, 2009 (boomark / email).