Fordham Law

Multiple Citations to Fordham Scholarship in Supreme Court Death Penalty Decision

April 18, 2008

Deborah Denno, Fordham Law  School’s Arthur A. McGivney Professor of Law, was cited many times in the United States Supreme Court’s recent decision in <i>Baze v Rees</i>, which concerned the constitutionality of Kentucky’s lethal injection procedure. 

In the Court’s April 16 decision, four separate articles by Denno, reflecting a range of her scholarship spanning the last decade, were cited in four opinions.

Denno’s article, “Getting to Death: Are Executions Constitutional?” 82 Iowa L. Rev. 319 (1997), was cited twice by Chief Justice John Roberts.

Denno’s article, “When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us,” 63 Ohio St. L. J. 63 (2002), was cited by both Justice Stevens and Justice Breyer, in addition to being discussed in text (as is Denno’s testimony) by Justice Breyer.

Denno’s recent Fordham Law Review article, “The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty,” 76 Ford. L. Rev. 49 (2007), was cited by Chief Justice Roberts, Justice Alito, Justice Stevens, and Justice Breyer.

Denno's article (with three others), "Perspective Roundtable: Physicians and Execution - Highlights from a Discussion of Lethal Injection," 358 New England Journal of Medicine 448-51 (2008) (with Atul Gawande, Robert D. Truog, and David Waisel), was cited by Justice Alito.

Baze considered whether Kentucky’s lethal injection procedure constituted cruel and unusual punishment under the Eighth Amendment. The Court upheld the method’s constitutionality in a 7-2 ruling.

According to Denno, “Baze v. Rees is a heavily splintered plurality decision in which the Supreme Court puts forth an Eighth Amendment standard that an execution method must constitute a ‘substantial’ or ‘objectively intolerable’ risk of serious harm before it can be rendered a violation of the Eighth Amendment.  While the Court affirmed the constitutionality of Kentucky's lethal injection procedure, the evidence available in Kentucky was limited due to constraints on discovery and the fact that the state has conducted only one prior lethal injection execution.  Other states have far more information available concerning the problems with their particular procedures.”  Denno emphasized that “the Court left some doors open for future litigation on the constitutionality of lethal injection, and death penalty attorneys are already starting to knock on those doors.  Lethal injections challenges will continue full steam.”

In addition to Denno’s three articles, a May 2008 article appearing in the Fordham Urban Law Journal was also cited in Baze. The article’s author, Ty Alper, was one of many leading death penalty scholars and experts who spoke at Fordham Law School’s March 7-8 symposium, “The Lethal Injection Debate: Law & Science.”

The Court also cited variously a Fordham Law Stein Center amicus brief.