Academic journal article Harvard Law Review

A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections

Academic journal article Harvard Law Review

A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections

Article excerpt

An explosion of Eighth Amendment challenges to lethal injection protocols has struck the federal courts. The Supreme Court's recent decision in Hill v. McDonough, (1) which empowered prisoners to bring challenges to lethal injection procedures under 42 U.S.C. [section] 1983, has facilitated a flood of new lethal injection cases. In response, several courts have ordered states to alter their protocols, spurring other capital inmates to litigate such challenges.

Distressingly, the courts evaluating these claims have almost no law to guide them. The last Supreme Court decision applying the Eighth Amendment to a method of execution was written in 1947; that case, Louisiana ex rel. Francis v. Resweber, (2) occurred before the Eighth Amendment was applied to the states and resulted in a 4-1-4 split. Although lower courts have heard numerous challenges to execution methods, few have analyzed the constitutional validity of a method of execution in detail. Making matters worse, courts that find Eighth Amendment violations must craft equitable remedies that often amount to entirely new execution protocols. No clear precedent exists to guide courts in formulating such remedies.

This Note proposes a legal standard for the administration of Eighth Amendment method-of-execution claims, focusing on lethal injection cases. Part I describes lethal injection procedures and summarizes recent litigation. Part II discusses the difficulty of evaluating lethal injection claims, analyzing both general difficulties in interpreting the Eighth Amendment and specific difficulties associated with lethal injection cases. Part III proposes a standard for addressing method-of-execution claims that attempts to balance a prisoner's interest in a painless execution with a state's interest in conducting executions efficiently. Part IV discusses remedies for unconstitutional procedures. Part V concludes.


A. Criticisms of Lethal Injection

Lethal injection is by far the predominant method of execution in the United States. It is a method of relatively recent vintage: the first state to adopt it was Oklahoma in 1977. (3) Since then, however, every state that uses the death penalty except Nebraska has adopted lethal injection as its default method, although several states permit inmates to select alternate methods of execution. (4) The precise reason for this trend is unclear, but humaneness and a public perception of decency are among the likely candidates. (5) All currently pending method-of-execution challenges concern lethal injection. (6)

Lethal injection statutes vary considerably. Whereas some states regulate executions in detail, others have not officially adopted written protocols. (7) Several states mandate the use of barbiturates followed by chemical paralytic agents, while others are vague. (8) In addition, several states authorize multiple execution methods, and they vary in how the method is selected. (9) Ten states permit the government to switch to another method if lethal injection is declared unconstitutional. (10)

However, despite the statutory variations, almost every state uses the same process for executing prisoners. Three chemicals are used. (11) First, the state injects sodium thiopental, a barbiturate that rapidly causes unconsciousness. Second, the state injects pancuronium bromide, a muscle relaxant that paralyzes the body. Finally, the state injects potassium chloride, which induces cardiac arrest. (12)

The most frequently cited complaint with the three-drug procedure is that the barbiturate may not work, leading the inmate to suffer excruciating pain upon the injection of the potassium chloride (13): the chemical "inflames the potassium ions in the sensory nerve fibers, literally burning up the veins as it travels to the heart." (14) The use of this chemical is sufficiently cruel that the American Veterinary Medical Association prohibits unanesthetized administration of potassium chloride to euthanize animals. …

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