"Lethal Injection and the Problem of Constitutional Remedies"

The title of this post is the title of this new paper by Professor Eric Berger available via SSRN. Here is the abstract:

Many states' lethal injection procedures contain serious flaws that create a significant risk of excruciating pain, but, more often that not, courts uphold those procedures against Eighth Amendment challenges.  This Article argues that remedial concerns significantly shape — and misdirect — courts' approaches to lethal injection.  Many courts, including the U.S. Supreme Court in Baze v. Rees, fear that any lethal injection remedy would unduly burden the state and interfere with executions.  Accordingly, they sharply limit the underlying Eighth Amendment right.

This Article contends that these remedial anxieties are misplaced here.  Lethal injection procedures are not only dangerous but also the product of troubling political process failures.  Accordingly, far from deserving judicial deference, states' systemic lack of attention, transparency, and democratic deliberation require court oversight.  Moreover, contrary to common wisdom, lethal injection actions seek only modest relief that would make executions much safer without interfering excessively in state affairs.

In allowing mistaken remedial concerns to dissuade real engagement with the merits in these cases, judges are abdicating their constitutional responsibility to oversee state practices threatening individual rights.  Courts may instinctively look to remedial issues when determining the scope of a constitutional right, but, given that they do so, they should consider those issues more carefully.  As criticisms of public law injunctions have increased, some judges have overlooked their obligation to hold states accountable for unconstitutional procedures, particularly when state officials insulate those procedures from democratic processes.  Until courts adopt a more nuanced approach to constitutional remedies, they will continue to under-enforce some constitutional rights and effectively bless inhumane practices.

Like many scholarly article about the death penalty, this piece in my view makes a lot of good points in the completely wrong setting.  It is exactly right to notice that "remedial concerns significantly shape — and misdirect — courts' approaches" to certain Eighth Amendment claims.  But this problem does not seem significant at all in most capital punishment settings, whereas it is an ever-present problem in non-capital cases involving Eighth Amendment challenges. 

In all the major lethal injection rulings in both federal and state courts, I am repeatedly and consistently impressed with the extent of the "real engagement with the merits" of what always seem to be very weak evidentiary claims based on limited medical evidence and a few anecdotes.  In sharp contrast, a broad array of Eighth Amendment claims brought by non-capital defendants — whether involving extreme sentences or extreme prison conditions — rarely seem to get serious consideration by courts, let alone "real engagement with the merits." 

I know the judgment "inhumane" is in the eye of the beholder, but I continue to struggle to understand why so many folks criticize courts for failing to order states to take extraordinary precautions to minimize every possible risk that a murderer might possibly feel some pain during the execution process.  In my book, it is far more inhumane when courts bless an LWOP sentence for a 13-year-old offender or a six-year prison term for a woman whose covered breasts touched a ward, or a 55-year mandatory prison term for three small sales of pot, or 200 years imprisonment for downloading illegal porrn.