Professor Deborah Denno was quoted in The Atlantic in an article discussing the history and ethics of the death penalty.
Whether killing a person via intravenous poisoning qualifies as cruel and unusual remains, for the moment, an open question. Beginning in late February, the United States District Court for the Western District of Oklahoma heard testimony at the trial of Glossip v. Chandler, an eight-year-old lawsuit filed on behalf of a group of death-row inmates that seeks to prove that Oklahoma’s current lethal-injection recipe—500 milligrams of midazolam, followed by 100 milligrams of vecuronium bromide, followed by 240 mEq potassium chloride—violates the Constitution’s Eighth Amendment ban on cruel and unusual punishment. The case focuses on the constitutionality of midazolam, a sedative with limited anesthetic and no analgesic properties that critics argue results in slow and painful deaths for those poisoned with it.
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Roughly a century later, Bessler told me, the Framers of the American Constitution ratified the ideals set forth in the English Bill of Rights in our own founding documents, in the form of the Eighth Amendment. By the following century, Deborah Denno, a professor at Fordham University School of Law, told me, method-of-execution challenges were already being brought under the amendment’s auspices.
“They started right away with electrocution in the late 1800s,” Denno said. She pointed to the case of William Kemmler, a murderer in New York State condemned to be the first American to be executed by electrocution, in 1890, as the beginning of method challenges in the United States. Kemmler lost his challenge—but, Denno said, his death still marked a turning point in the history of capital punishment. His horrific execution (one witness commented on the “terrible stench” of burning hair and flesh that flooded the chamber as the current coursed through Kemmler) proved the electric chair effective, and attorneys around the country had what they needed to challenge the method in court.
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But even so, the needle gained widespread acceptance, Denno told me, and prosecutors soon found themselves in a bind. “By 2008, just about all the states now had lethal injection,” she told me. “So the rub is, when lethal injection is challenged, [prosecutors]don’t have another method of execution to go to … And by that time, you had a bunch of very sophisticated attorneys who were on to these execution-method arguments.” Denno said that as a result, by the late aughts, “it looked like all these challenges were shutting down states’ abilities to execute anybody.”