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June 16, 2014

"Lethal Injection Secrecy and Eighth Amendment Due Process"

The title of this post is the title of this timely new article by Eric Berger now available via SSRN.  Here is the abstract:

The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure with which the state plans to kill them.

This Article argues that the Eighth Amendment includes an implicit due process right to know such information about the state’s planned method of execution. Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution, because the state can conceal crucial details of its execution procedure, thereby effectively insulating it from judicial review.

As in other constitutional contexts, then, due process norms require that the inmate be permitted access to information necessary to protect his other constitutional rights. These same norms likewise require courts, rather than administrative agencies, to judge the execution procedure’s constitutionality. Indeed, judicial recognition of this due process right would not only protect Eighth Amendment values but would also encourage states to make their execution procedures more transparent and less dangerous. Just as importantly, judicial recognition would also discourage secretive governmental practices more generally, thereby promoting openness and fair process as important democratic values.

June 16, 2014 at 12:59 PM | Permalink


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Not only is an execution extremely premeditated, probably more so than any murder, this weapon used in secrecy adds a special circumstance of stealth that is akin to lying in wait.

Posted by: George | Jun 16, 2014 3:08:10 PM

Open information about sources is a legal pretext to harass and beat up the source to abolish the death penalty.

So this article is in bad faith, and George is not honest about the real purpose of naming the source.

Posted by: Supremacy Claus | Jun 17, 2014 8:27:46 AM

Good article.

As the article notes, openness of information in punishment contexts has been deemed for a long time a necessary aspect of due process of law, so if it is such a problem here, the stopping point is unclear.

I am against the death penalty, but not all punishment, and think openness is important in general. People who support the death penalty have voiced concerns raised in the article as well.

Posted by: Joe | Jun 17, 2014 12:11:16 PM

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