The death penalty has once again come under Supreme Court scrutiny. The last time the court ruled on the matter was in 2008. In Baze v. Rees, the Court upheld the constitutionality of Kentucky’s three-drug lethal injection protocol.
Deborah Denno
Deborah Denno: “The Baze decision broke decades of silence from the Supreme Court regarding state execution methods.”
That’s Fordham Law Professor Deborah Denno, one of the nation’s leading experts on the death penalty and lethal injection.
Deborah Denno: “In the six years after Baze, legal challenges to lethal injection soared as states scrambled to quell litigation by modifying their lethal injection protocols. My study of over 300 cases citing Baze reveals that such modifications have occurred with alarming frequency.”
The scope of her empirical study, published in the Georgetown Law Journal, was unprecedented.
Deborah Denno: “Limits to the Baze Court’s analysis suggest that the decision is by no means a definitive response to the issue of lethal injection’s constitutionality. In fact, Baze was so splintered that none of its seven opinions garnered more than three votes, and the justices offered a wide range of explanations and qualifications in their reasoning. In addition, the decision was confined to Kentucky and its particular protocol.
“I did this study because I was concerned how much precedential value Baze really had. There were courts throughout the country making decisions about lethal injection protocols, and they had no guidance — and Baze was clearly out of date.”
It’s the lethal injection execution method used by Oklahoma that is at the center of the Supreme Court’s latest case, Glossip v. Gross.
Deborah Denno:Lethal injection, the method of execution currently used by all death penalty states for nearly all executions, was first enacted by Oklahoma in 1977. The state’s past method, electrocution, was deemed too costly and grisly. The state sought a method that looked soothing to viewers, like putting a dog to sleep.
“When the state’s medical association declined to assist in developing such a method, legislators turned to the state’s medical examiner. The medical examiner admitted his paltry expertise but nonetheless drafted a lethal injection protocol in one afternoon. He was upfront regarding his concerns about the protocol’s efficacy, but the legislators simply assumed that new and better drugs would become available before any executions actually occurred.
“Oklahoma’s three-drug protocol was quickly adopted by other states — and eventually by virtually all death penalty states — despite no medical and scientific study as to its effectiveness.
“From the time Texas first used lethal injection in a terribly botched 1982 execution until the 2008 Baze case, there were numerous botched lethal injection executions across the country.”
As citizens — and lawsuits — debated whether or not botched executions amounted to “cruel and unusual punishment,” which is prohibited by the eighth amendment to the U.S. Constitution, states have faced additional challenges obtaining the drugs needed to carry out lethal injections.
Deborah Denno: “Shortages in lethal injection drugs have compelled execution officials to make unfettered and reckless drug substitutions based on convenience and accessibility.
“Consider the execution of Clayton Lockett in Oklahoma, which occurred last year on April 29. Officials chose to use midazolam for Lockett’s lethal injection, despite enormous criticism of the drug’s viability and its problematic history in prior executions.
“Under time constraints due to another execution scheduled for the same evening, Lockett’s 43-minute execution became a procedural disaster involving unlabeled syringes, incorrectly sized needles, improper IV placement, and a doctor who confused a vein and an artery. The drugs leaked into Lockett’s tissue and Lockett unexpectedly regained consciousness.
“Amidst the pandemonium, Lockett’s execution was stopped. He died ten minutes later while officials and executioners were debating whether he should receive medical care.”
Now, as the Supreme Court prepares to hear oral arguments in Glossip, Denno plans to be in the gallery.
Deborah Denno: “However the Court rules, Glossip will bear on one of our nation’s most weighty responsibilities — the taking of a life — and what it says about us as a country.”
To learn more about Professor Denno’s scholarship on the death penalty and lethal injection — as well as her examinations of neuroscience and the law — visit her web page.
