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April 30, 2006

How could (and should) Congress clean up the lethal injection mess?

No matter what one's view on the death penalty, the lethal injection litigation over the last four months has to be seen as a national disgrace.  And lately I have been pondering whether and how Congress could and should do something to try and clean up the lethal injection mess.

Proponents of capital punishment have to be troubled that lethal injection litigation has produced de facto moratoriums on executions in California, Florida, Missouri and in the federal system.  Opponents of capital punishment have to be troubled that Texas and a few other states have not seriously examined their lethal injection protocols as they proceed with executions.

Moreover, anyone genuinely interested in federalism, or sentencing consistency, or orderly government has to find the patchwork and disparate litigation taking place in federal district courts nationwide unseemly and counter-productive.  And don't get me started on the stressful and inefficient expenditure of the time and energies of lower federal courts and state lawyers in all this capital litigation.

Of course, the Supreme Court shifted this litigation mess into high gear with its cert grant in Hill, and it might clean up some of the mess whenever it decides Hill.  But, because Hill is only formally concerned with a narrow procedural issue and because SCOTUS seems deeply divided on most death penalty matters, I fear the Court's decision in Hill might make the lethal injection litigation mess worse, not better.

So, with this background, how about another branch of the federal government stepping in?  Congress could, at the very least, hold hearings to explore the medical matters at issue in all the litigation.  Congress might also weigh in on the merits by encouraging states to adopt a particular lethal injection protocol.  Or Congress might just clean up some procedural issues by authorizing a specialized tribunal — the federal circuit? — to consider these challenges in the first instance.

I can see pros and cons to all possible Congressional action in this context.  But the basic question and concern is whether Congress should just sit on the sidelines while important matters of life and death unfold in such a haphazard (and unjust?) way.

UPDATE: After finishing this post, I recalled Congress's role in last year's hub-bub over Terry Schiavo where only one life was involved.  In contrast, if you credit any claims about the deterrent impact of executions, a lot more innocent lives (of potential murder victim) — as well as guilty lives of murders and the emotional lives of family members of victims and defendants  —  are at stake in the on-going lethal injection litigation.  Where are the vocal "culture of life" advocates  when we need them?

April 30, 2006 at 11:11 AM | Permalink


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I surely hope that Congress holds off until Hill is decided. I suspect given the current makeup of the Court, that Hill will resolve the issue summarily.

Posted by: ohwilleke | Apr 30, 2006 7:33:28 PM

I am a student at WIU. I can't understand why it should matter how a prisoner dies. My own thoughts on the subject is that maybe they should be executed the same way they killed someone. When it comes to murderers, why should we be so concerned about their civil rights. Did they think about the persons civil rights that they killed? Did they think about cruel and unusual punishment as they were torturing someone? No, they didn't. I am doing a persuasive essay on Lethal Injection, and I am shocked aat the information that I am finding. These prisoners that are on death row are having the nerve to say that being put to death is cruel and unusual punishment. What about the lives they took? When that person was begging for their life, did they care? No, they did not. I truly think that the way capital punishment is performed is nothing like it should be. I don't think anyone who commits rape and murder should have any rights. Nothing is going to bring the person back that has been killed so why must we be so kind to them?
Thank you for your time,
Kathryn White

Posted by: Kathryn White | May 15, 2006 9:22:28 PM

Congress should deal with this mess by withdrawing federal jurisdiction for the whole method of execution issue. The federal courts have shown themselves (as a whole) to be fundamentally irresponsible. Congress passed AEDPA 10 years ago to stop these abusive last-minute stay motions. This is not a secret. And what do federal courts do, they ignore Congress' plain intent and allow these claims to be pressed--at a cost of the orderly administration of justice.

Posted by: Sobrien | May 15, 2006 9:42:31 PM

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