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January 3, 2008

Examining why states have not tried improving execution protocols

Adam Liptak has this great article in today's New York Times, headlined "States Hesitate to Lead Change on Executions." Here are excerpts from a must-read:

When a state panel recommended last April that Tennessee abandon the three chemicals used in executions across the nation in favor of the single drug usually used in animal euthanasia, the state’s corrections commissioner said no.  Though the move would have simplified executions and eliminated the possibility of excruciating pain, the commissioner, George Little, said Tennessee should not be “out at the forefront” of a decision with “political ramifications,” according to recently disclosed evidence in a death row inmate’s lawsuit.

Mr. Little’s decision helps illuminate one of the questions lurking behind the year’s most eagerly anticipated death penalty case: Why have states so doggedly and uniformly clung to an execution method with the potential to inflict intense pain when a simpler one is readily available?

When the Supreme Court hears arguments on Monday in Baze v. Rees, the Kentucky case that has led to a de facto national moratorium on executions, it will mostly be concerned with the question of what standard courts must use to assess the constitutionality of execution methods under the Eighth Amendment, which bars cruel and unusual punishment. But beyond that is the more practical question of why all 36 states that use lethal injections to execute condemned inmates are wedded to a cumbersome combination of three chemicals.

The answer, experts say, seems to be that no state wants to make the first move. Having proceeded in lock step to adopt the current method, which was chosen in part because it differed from the one used on animals and masked the involuntary movements associated with death, state governments would prefer that someone else, possibly the courts, change the formula first....

Some experts on executions say the debate over which chemicals to use is the wrong one. States have adopted a process that appears humane because it looks like medical treatment, Professor [Deborah] Denno said.  But looks can be deceiving, she added.  “To me,” Professor Denno said, “the firing squad is the most humane and perceived to be the most brutal.”

This article highlights not just death penalty realities, but also why courts often have to be "activist" to push forward sound criminal justice reforms.  For various reasons (some of which I have discussed in recent scholarship here and here and here), elected officials are often unable or unwilling to avoid status-quo biases in the criminal justice arena.  In this arena, courts often are the only institutional actors who can't completely avoid examining a pressing problem, and that very reality may make it essential for courts to get involved with issues that really should be solved by other branches (issues like prison overcrowding and sex offender restrictions are examples that come to mind in addition to the lethal injection mess).

In the execution arena, I have been saying for a while (see here and here) that Congress ought to have conducted hearings and examined proposals for an ideal execution method one the evidence of lethal injection problems became evident.  But because elected national and state officials have not stepped up to the plate, the courts essentially have had to choice but to intervene and these matters made their way finally to the Supreme Court in Baze.  Exactly what the Justices will do in Baze, however, is still hard to predict.

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Tracked on Jan 3, 2008 11:12:24 AM


Your persistence in ignoring the reality on the ground - of ever more reluctance of juries to sentence beyond LWOP and of evidence of increasing pressure for abolition (successful in New Jersey) - while continuing to plug a tinkering of process to shore up a thoroughly discredited process (from initial prosecution, through trial, sentencing, post trial appeal and now execution) is disappointing. As you rightly say, there are times when "courts often are the only institutional actors who can't completely avoid examining a pressing problem, and that very reality may make it essential for courts to get involved with issues that really should be solved by other branches". This is just as true for macro issues such as the death penalty itself, as for micro issues that you choose to focus upon. The Court, as I understand it, can only respond to cases that come before it. While the sponsors of this case may not, cannot, address the central issue of the principle of the death penalty - it does give the Court a real opportunity to address the macro issue if it so chooses. After the New Jersey vote, it should so choose.

Posted by: peter | Jan 3, 2008 9:20:24 AM

Thanks, Peter. You're right. No one should ever talk about the death penalty without calling for its abolition. Shame on Professor Berman.

In response to the topic of the post, if the courts continue to bail out the legislatures, then it will make it that much easier for the legislatures to continue to avoid difficult issues. I agree with Prof. Berman's identification of the problem, but I guess I'm not convinced that the solution is judicial intervention.

Posted by: | Jan 3, 2008 11:17:11 AM

Suppose states shifted to firing squad in order "simplify executions" and eliminate "the possibility of excruciating pain," as Mr. Liptak suggests. After all, we've got a bona fide expert in Professor Denno who says it's "the most humane." I have no doubt she has the "research" to back that up.

In such a situation, does anyone really believe that not a single death-penalty opponent would ever file an 8th Amendment challenge to firing squad as a method of execution? Does anyone really believe that no death-penalty opponent would challenge a single-drug protocol, for that matter?

That's why states are not changing. It's because it wouldn't do them any good. The same challenges would be filed and the same speculative arguments about "the possibility of excruciating pain" would be made. Why not just stand their ground and attempt to show that the 8th Amendment doesn't protect against "the possibility of excruciating pain" but, instead, prohibits protocols purposely designed to inflict excruciating pain? You know, like showing someone their own intestines before they are strangled and then beheaded?

I am an appellate prosecutor in a death-penalty jurisdiction so I'm understandably frustrated with this whole charade. Please forgive my sarcasm.

Posted by: | Jan 3, 2008 12:56:43 PM

nameless - if you have a problem about the substance of my post I suggest you address your comments to that rather than throw facile barbs. And since you choose to address me, it might be courteous to give yourself at least a nick.

Posted by: peter | Jan 3, 2008 12:58:01 PM

Doug, your comments illustrate what I think is the truest statement I have ever heard about the death penalty- "Capital punishment is not a part of the criminal justice system as much as it is a part of the political system." I represented the first black defendant scheduled for execution in North Carolina following Furman and somehow the execution date got scheduled for Martin Luther King's birthday. Several days later, without my request, the date of execution was mysteriously changed, I'm sure because someone finally saw the political "incorrectness" of the situation.

Bruce Cunningham

Posted by: bruce cunningham | Jan 3, 2008 5:16:34 PM

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