The Road to Abolition? The Future of Capital Punishment in the United States

By Charles J. Ogletree; Austin Sarat | Go to book overview

6
For Execution Methods Challenges, the
Road to Abolition Is Paved with Paradox

Deborah W. Denno

The death penalty's popularity has waned appreciably in recent years. Whether because of disturbing discoveries of innocence among death row inmates, the narrowing of the classes of individuals eligible for execution, racial disparities, botched executions, or other reasons, the courts and the public have shown more skepticism of the capital punishment process in the twenty-first century than they have since the early 1970s.1 Riding high on the momentum of this snowballing development are challenges to lethal injection under the Eighth Amendment's Cruel and Unusual Punishments Clause.2 According to one death penalty commentator, these challenges “have already held up more executions, and for a longer time than appeals involving such … issues as race, innocence, and mental competency.”3

In this chapter, I contend that, despite the contributions that lethal injection challenges have made toward decreasing the number of executions, the oft-perceived link between execution methods litigation and the potential abolition of the death penalty is a double-edged sword. Because lethal injection challenges apply to nearly every death-row inmate in the country, their impact on the death penalty generally is more sweeping than more particularized efforts to protect a specific class of inmates, such as the mentally incompetent. Nonetheless, the presumed tie between successful lethal injection challenges and abolition can distract legislatures, courts, and prison personnel from examining the actual issue under consideration—the constitutionality of states' execution protocols. The result can be paradoxical and damaging to the goals of death penalty proponents and opponents alike. The very strategy that is supposed to enhance

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