Denno on Lethal Injection SecrecyDeborah Denno in Legal Theory Blog, September 30, 2013
Deborah W. Denno (Fordham University School of Law) has posted Lethal Injection Secrecy Post-Baze (Georgetown Law Journal, Vol. 102, No. 5, 2014) on SSRN. Here is the abstract:
This article assesses the impact of the 2008 Supreme Court case Baze v. Rees on lethal injection, this country’s prevailing method of execution. The Baze Court declared Kentucky’s lethal injection protocol constitutional. Yet the opinion was too weak and vague to quell legal challenges to lethal injection, which have soared in the past five years and led states to modify their lethal injection protocols with unprecedented frequency. This article’s unique analysis of over 300 cases citing Baze from 2008-2013 reveals that states’ lethal injection protocols have become increasingly diverse from one another, and from the original protocol evaluated by the Baze Court. Consequently, Baze has been rendered largely irrelevant a mere five years after its issuance.
Meanwhile, post-Baze legal challenges have been overshadowed by an even bigger obstacle to lethal injection: unanticipated national shortages in lethal injection drugs, which have resulted in a new wave of litigation and protocol changes as states struggle to procure the drugs they need to carry out lethal injection executions. A growing number of states are considering the use of compounding pharmacies to manufacture lethal injection drugs. Yet proposed (and seemingly inevitable) legislation that would increase regulation of these facilities may render compounded drugs ineligible for use in executions.
Left with little guidance from Baze and dwindling drug supplies, states are likely to retreat into secrecy regarding their lethal injection procedures, making it increasingly difficult to identify and address enduring problems with those procedures. This article calls for transparency as a crucial foundation for efforts to ensure that lethal injections remain constitutional at a time when the future of this execution method is far from clear.