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December 27, 2006

Seeking balanced scholarly wisdom on lethal injection mess

As part of a year-end review of the death penalty in 2006, Karl Keys here provides a fairly comprehensive account of "The Year of the Needle."  Also, DPIC has kept this page updated with all the latest lethal injection developments.  Both resources have me wondering when we will start seeing extended scholarly analyses of all the lethal injection brouhaha.

As we enter 2007, lethal injection issues have resulted in moratoria on executions in the two states — California and Florida — with the largest death rows.  In addition, nine other jurisdictions — Arkansas, Delaware, Kentucky, Maryland, Missouri, New Jersey, Ohio, South Dakota and the federal system — have had executions blocked or delayed because of lethal injection issues.  Not surprisingly, most death penalty abolitionists have celebrated these developments, while death penalty proponents have been troubled that the chance a condemned murder might suffer pain while being executed has brought capital punishment to a near stand-still nationwide.

Responding in part to the Supreme Court's contribution to this mess with its ruling in Hill v. Crosby, I wrote an article on lethal injection development for the Cato Supreme Court Review. Entitled "Finding Bickel Gold in a Hill of Beans," I urged Congress and state legislators to do more to clean up the lethal injection mess.  (I've also blogged on these themes in posts here and here and here.) 

Perhaps because legislatures have not listened to my scholarly suggestions, I am now wondering when other scholarly voices will start expounding balanced wisdom on all the lethal injection developments.  (Of course, Debby Denno has written a lot in this area in the past, as detailed here and here, but I do not think she's written yet on 2006 developments.)  The extreme views of partisans are generally well-known in this arena, but I am eager to hear what others in the ivory tower make of all the lethal injection goings-on.  Perhaps lawyers, judges and lawmakers scrambling on the ground in numerous states would also be eager for more scholarly insights. 

December 27, 2006 at 05:39 PM | Permalink


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Hopefully, any of the balanced scholarly looks will (a) acknowledge that these lethal injection cases in federal courts should be dealt with swiftly, as the Supreme Court has said that when stays in capital cases are issued, the issues need to be resolved expeditiously, (b) acknowledge that some of the legal reasoning in some of the cases lacks, e.g., Fogel's constitutionalization of the wattage of a light bulb or Frost's use of cases where a party has engaged in sharp dealings to analyze Ohio's "fault" in filing an interlocutory appeal and (c) examine whether the burden of proof has been subtly shifted from the prisoner to the state in these cases.

It also should never be forgotten that the victims' families have gotten the shaft. It should never be forgotten that these stays are equitable remedies, and I fail to see how the equities lie with any of these killers. But that's just me.

Posted by: federalist | Dec 28, 2006 1:45:12 AM

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