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April 8, 2017

"Cruel Techniques, Unusual Secrets"

The title of this post is the title of this new paper authored by William Berry and Meghan Ryan now available via SSRN. Here is the abstract:

In the recent case of Glossip v. Gross, the Supreme Court denied a death row petitioner’s challenge to Oklahoma’s lethal injection protocol.  An important part of Justice Alito’s majority opinion highlighted the existence of a relationship between the constitutionality of a punishment and the requirement of a constitutional technique available to administer the punishment.

Far from foreclosing future challenges, this principle ironically highlights the failure of the Court to describe the relationship under the Eighth Amendment between three distinct categories of punishment: (1) the type of punishment imposed by the court — i.e., death penalty, life without parole, life with parole, (2) the method of punishment — the tool by which the state administers the punishment, and (3) the technique of punishment — the manner in which the state administers the punishment.  Because, as Justice Alito insists, a constitutional method and technique must exist for a constitutionally approved punishment, there is a constitutional relationship between these categories.

As such, this Article articulates a holistic model for applying the Eighth Amendment on three levels — the punishment type, method, and technique.  This Article develops this taxonomy, making explicit the concepts implicit in a number of Eighth Amendment cases.  To be sure, the Court has assessed types of punishments, punishment methods, and punishment techniques individually, but it has never offered a holistic framework by which to understand these related constitutional inquiries.  This Article develops such an approach.

In light of the applicable framework, the Article then explores the Court’s application of the Eighth Amendment with respect to the three categories, demonstrating how the Court deviates from its doctrine when considering punishment techniques.  It next describes use of secrecy in the context of lethal injection, uncovering the manner in which this secrecy frustrates the application of the Eighth Amendment framework.  Further, the Article argues that the state-instigated secrecy does more than create a doctrinal smokescreen — it raises serious constitutional and legitimacy questions concerning lethal injection protocols.  Finally, the Article concludes by exploring what transparency in execution methods might mean both in terms of restoring dignity to death row prisoners and for the future of capital punishment in America.

April 8, 2017 at 02:39 PM | Permalink


Transparency has been a major concern in various recent lower court opinions in this area and one or more times justices were on record in dissenting from denial of cert. as well. But, to my knowledge, none of them actually wrote a dissent that addressed the matter specifically. The article cites a dissent by Justice Brennan that argues that transparency is important here to protect the due process of the defendant [the 1A arguments to me are weaker if possible]. The lack of transparency possible if the dissenting justices here actually had to explain WHY they were dissenting [which they did in a few cases] is a tad ironic.

Posted by: Joe | Apr 8, 2017 3:49:06 PM

Transparency, is lawyer language for finding out the name and address of the compounding pharmacies. Then, the forces protecting the criminal will destroy them.

Posted by: David Behar | Apr 8, 2017 11:50:17 PM

Do the lawyers and weasels here support the idea of transparency, and oppose secretiveness when it comes to compounding pharmacies for death penalty drugs?

Anyone who does, must provide their real name, their home address, their bar license number. Then they must provide the fraction of their incomes that comes from government. After all, you support transparency.

How will such information be used? I will not bring over some of the many thugs that I know. I will not try to destroy any lives. I want to come over to debate these people. This is in contrast to the demands for transparency of compounding pharmacies, where thugs will show up and destroy the people there.

Posted by: David Behar | Apr 9, 2017 1:40:41 AM

ETA: Double checking, the article does repeatedly cite Brennan's Glass v. LA dissent, which cites the importance of examining "all available evidence," but the specific transparency reference I was thinking of was from an article cited in a footnote that cited Brennan's dissent as well.

Posted by: Joe | Apr 9, 2017 11:34:33 AM

Joe. You need to share with the class "all available evidence" about yourself.

Posted by: David Behar | Apr 9, 2017 11:42:18 AM

"...from an article cited in a footnote that cited Brennan's dissent as well."

Joe, WTF?

Posted by: David Behar | Apr 9, 2017 6:00:58 PM

Footnote 162: Glass v. Louisiana, 471 U.S. 1080, 1084 (1985) (Brennan, J., dissenting); Berger, supra note 121, at 1372 (arguing that “[w]ithout access to information about execution protocols, the inmate’s Eighth Amendment protection against unconstitutional executions evaporates, because the state can conceal details of its execution procedure, thereby insulating it from judicial review. To safeguard the inmate’s Eighth Amendment right, then, courts should require states to disclose all material details of their execution procedures.”).

Two citations in the same footnote. The importance of transparency is specifically cited in the Berger article.

Posted by: Joe | Apr 9, 2017 11:45:20 PM

Joe. I know we are not on What's My Line, but do you do legal research? I may have work for you. After the end of my tenth banning from Facebook, in a week or so, try to find me there, and to send me a Friend Request. Or else, ask Prof. Berman for my email. He has my permission to give it to you.

Posted by: David Behar | Apr 10, 2017 4:21:03 AM

I don't know how to take that comment.

Anyway, yes, my previous comment could have been phrased better. That's the footnote I was thinking of, quoted from the article Prof. Berman provided.

Posted by: Joe | Apr 10, 2017 11:23:20 AM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB