Fordham Law’s Stein Center for Law and Ethics recently submitted an amicus brief to the U.S. Supreme Court in the matter of Johnson v. Kelley, a method-of-execution challenge from Arkansas with major potential implications on judicial review in capital punishment matters and Eighth Amendment protections for death row inmates.
The Stein Center’s brief cites four published articles by Fordham Law Professor Deborah W. Denno—Arthur A. McGivney Professor of Law, founding director of Fordham’s Neuroscience and Law Center, and a leading death penalty scholar—in asking the U.S. Supreme Court to review a decision of the Arkansas Supreme Court holding that a death-row inmate could not challenge the state’s proposed method of execution by lethal injection.
Last year’s Supreme Court decision in Glossip v. Gross (2015) held that an inmate could successfully challenge a proposed execution method as excessively painful only if the inmate could show that there was an available alternative that was less painful. An Arkansas trial court agreed that the lethal injection that the state had in mind could prove cruelly painful. But the state’s high court refused to sustain Johnson’s constitutional challenge because the relevant state statute did not offer the less painful alternatives proposed by Johnson or any other less painful alternative.
“I hope the Court takes away from this brief that this an ongoing problem, and it’s only gotten worse,” said Denno, in reference to method-of-execution issues.
For the past two decades, the Stein Center and affiliated Fordham Law faculty, including Denno, have played a leading role in examining the ethical and historical dimensions of the death penalty and execution methods. The Stein Center previously submitted amicus briefs in three cases in which the U.S. Supreme Court examined execution methods: Bryan v. Moore (1999), Baze v. Rees (2008), and Glossip v. Gross (2015).
“The Stein Center and Professor Denno have a very important history of making sure this point of view on execution method cases is heard before the Supreme Court,” said Ellyde R. Thompson ’08, counsel of record for the Stein Center’s amicus briefs in Johnson and Glossip. Denno, in particular, has shown “how good academic research can impact legal strategies,” said Thompson, who served as the professor’s research assistant as a 2L and now works as an associate for Quinn Emanuel Urquhart & Sullivan LLP.
The Stein Center’s argument in Johnson centers around three main points:
- The Supreme Court consistently has recognized a right to judicial review to ensure that execution methods comport with the Eighth Amendment.
- The Arkansas Supreme Court’s decision limits feasible alternatives to those already delineated by state statute.
- Meaningful judicial review of execution methods requires consideration of non-statutory alternatives.
“If the Arkansas Supreme Court’s interpretation is not reversed, a state legislature will not only be permitted to select the most painful and barbaric method of execution but it also will be able to prevent constitutional review by limiting the available options to those selected by the legislature,” states the Stein Center’s brief, submitted to the U.S. Supreme Court on November 21.
Judicial review has historically served as a catalyst for what are generally perceived as more humane methods of execution. Today, that means states where the death penalty is legal employ lethal injection as their exclusive or primary means of capital punishment instead of past execution methods, such as hanging, electrocution, or lethal gas, that have since been deemed inhumane.
“Courts can’t just defer to legislatures to adopt execution methods that are not unduly painful, because history shows legislatures can’t be trusted and need judicial review so that the methods adopted are not horrendously cruel,” said Fordham Law Professor Bruce Green, director of the Stein Center.
The Arkansas Supreme Court’s decision to require lethal injection drugs to be state-authorized directly conflicts with the U.S. Supreme Court’s rulings in Baze and Glossip, which don’t require such authorization for execution alternatives, the Stein Center’s brief argues. A state’s refusal to accept an alternative without a “legitimate penological justification” can be viewed as “cruel and unusual” under the Eighth Amendment, according to the U.S. Supreme Court’s ruling in Baze.
Notably, the Arkansas Supreme Court’s interpretation of Baze and Glossip would mean prisoners in some states could challenge their execution method on Eighth Amendment grounds and propose more humane methods of execution while prisoners in other states would not have such an option, according to the Stein Center’s brief.
Prisoners in states where lethal injection protocols are delegated to Department of Corrections personnel may continue to challenge these protocols but may be restricted in such challenges by the types of drugs required by the statute.
“Mere geography should not dictate the contours of the Eighth Amendment,” the Stein Center’s brief states.