Examining why states have not tried improving execution protocols

January 3, 2008

Adam Liptak has this great article in today’s New York Times, headlined “States Hesitate to Lead Change on Executions.” Here are excerpts from a must-read:

When a state panel recommended last April that Tennessee abandon the three chemicals used in executions across the nation in favor of the single drug usually used in animal euthanasia, the state’s corrections commissioner said no. Though the move would have simplified executions and eliminated the possibility of excruciating pain, the commissioner, George Little, said Tennessee should not be “out at the forefront” of a decision with “political ramifications,” according to recently disclosed evidence in a death row inmate’s lawsuit.

Mr. Little’s decision helps illuminate one of the questions lurking behind the year’s most eagerly anticipated death penalty case: Why have states so doggedly and uniformly clung to an execution method with the potential to inflict intense pain when a simpler one is readily available?

When the Supreme Court hears arguments on Monday in Baze v. Rees, the Kentucky case that has led to a de facto national moratorium on executions, it will mostly be concerned with the question of what standard courts must use to assess the constitutionality of execution methods under the Eighth Amendment, which bars cruel and unusual punishment. But beyond that is the more practical question of why all 36 states that use lethal injections to execute condemned inmates are wedded to a cumbersome combination of three chemicals.

The answer, experts say, seems to be that no state wants to make the first move. Having proceeded in lock step to adopt the current method, which was chosen in part because it differed from the one used on animals and masked the involuntary movements associated with death, state governments would prefer that someone else, possibly the courts, change the formula first….

Some experts on executions say the debate over which chemicals to use is the wrong one. States have adopted a process that appears humane because it looks like medical treatment, Professor [Deborah] Denno said. But looks can be deceiving, she added. “To me,” Professor Denno said, “the firing squad is the most humane and perceived to be the most brutal.”

This article highlights not just death penalty realities, but also why courts often have to be “activist” to push forward sound criminal justice reforms. For various reasons (some of which I have discussed in recent scholarship here and here and here), elected officials are often unable or unwilling to avoid status-quo biases in the criminal justice arena. In this arena, courts often are the only institutional actors who can’t completely avoid examining a pressing problem, and that very reality may make it essential for courts to get involved with issues that really should be solved by other branches (issues like prison overcrowding and sex offender restrictions are examples that come to mind in addition to the lethal injection mess).

In the execution arena, I have been saying for a while (see here and here) that Congress ought to have conducted hearings and examined proposals for an ideal execution method one the evidence of lethal injection problems became evident. But because elected national and state officials have not stepped up to the plate, the courts essentially have had to choice but to intervene and these matters made their way finally to the Supreme Court in Baze. Exactly what the Justices will do in Baze, however, is still hard to predict.

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