Deborah W. Denno (Fordham University School of Law) has posted Lethal Injection Secrecy Post-Baze (Georgetown Law Journal, Vol. 102, No. 5, 2014) on SSRN, reported by Legal Theory Blog.
This article assesses the impact of the 2008 Supreme Court case Baze v. Rees on lethal injection, this country’s prevailing method of execution. The Baze Court declared Kentucky’s lethal injection protocol constitutional. Yet the opinion was too weak and vague to quell legal challenges to lethal injection, which have soared in the past five years and led states to modify their lethal injection protocols with unprecedented frequency.Meanwhile, post-Baze legal challenges have been overshadowed by an even bigger obstacle to lethal injection: unanticipated national shortages in lethal injection drugs, which have resulted in a new wave of litigation and protocol changes as states struggle to procure the drugs they need to carry out lethal injection executions.
Left with little guidance from Baze and dwindling drug supplies, states are likely to retreat into secrecy regarding their lethal injection procedures, making it increasingly difficult to identify and address enduring problems with those procedures. This article calls for transparency as a crucial foundation for efforts to ensure that lethal injections remain constitutional at a time when the future of this execution method is far from clear.
Read the entire Legal Theory Blog abstract.