"Individualized Executions"

The title of this post is the title of this new paper authored by William Berry now available via SSRN. Here is its abstract:

States continue to botch lethal injection attempts.  The decision to move forward with such procedures without considering the health of the inmate has resulted in a series of brutal, horrific incidents.  In its Eighth Amendment jurisprudence, the Supreme Court has established that courts must give defendants individualized sentencing determinations prior to imposing a death sentence.  Woodson v. North Carolina proscribes the imposition of mandatory death sentences, and Lockett v. Ohio requires that courts examine the individualized characteristics of the offense and the offender, including allowing the defendant to provide mitigating evidence at sentencing.

This Article argues for the extension of the Eighth Amendment Woodson-Lockett principle to execution techniques.  The Court’s execution technique cases proscribe the imposition of punishments that create a substantial risk of inflicting pain.  As such, application of the Woodson-Lockett principle to executions would require that courts assess the imposition of such execution techniques on a case-by-case basis to determine the constitutionality of the technique — as applied to the particular inmate — prior to execution.

In Part I, the Article describes the recent epidemic of failed lethal injection executions and highlights the need for reform in this area.  Part II describes the Woodson-Lockett doctrine, and explores its prior applications.  Part III then explains why this doctrine ought to apply to execution techniques, not just the kind of punishment imposed.  Finally in Part IV, the Article argues for the adoption of this approach, highlighting its advantages both on individual and systemic levels.