On August 31, Fordham’s Louis Stein Center for Law and Ethics, working with a pro bono team at Jenner & Block, filed an amicus brief with the Supreme Court in the Henness v. DeWine case on behalf of petitioner Warren Keith Henness. Henness is currently a prisoner on death row in Ohio who is arguing that the state’s planned method of execution—lethal injection using a combination of drugs likely to cause excruciating pain—is cruel and unusual in violation of the Eighth Amendment. As required by prior Supreme Court decisions, Henness proposed that an alternate drug be used for his method of execution that he argues is less likely to cause unnecessary suffering. The court of appeals rejected Henness’s argument, and he asked the Supreme Court to grant certiorari in order to review its decision. However, on October 5, the Court decided not to review the case.
Notwithstanding the Court’s decision, Professors Deborah W. Denno and Bruce Green argue there are important unresolved issues remaining about the constitutionality of lethal injection.
“The one-drug protocol using secobarbital that Henness is proposing is unquestioningly more humane and predictable than the drug combination the state currently employs,” explained Denno, Fordham’s Arthur A. McGivney Professor of Law and founding director of the Neuroscience and Law Center. “For example, secobarbital is used frequently in physician-assisted suicides in the United States, while Ohio’s drug combination would never even be considered for such a purpose.”
Decades of cases questioning use of the death penalty have cited the Eighth Amendment, but in recent years, inmates have increasingly begun to challenge execution methods as being cruel and unusual, noted Green, Louis Stein Chair of Law and director of the Stein Center. “Through counsel, inmates have been arguing that the method in which they would be executed—let’s say electrocution, or more recently, lethal injection—would be excessively painful and therefore cruel and unusual,” he said.
Green continued: “States have moved from execution methods to execution methods—from electrocution to lethal injection, from one lethal injection drug combination to another—without really doing the work to find out whether it will be less or more horrifically painful than what else might be used.”
Why focus on the minutiae of execution methods, rather than call into question the morality of the death penalty altogether? Denno offered the following explanation: “Lethal injection challenges often rely on evidence-based arguments that amass medical and empirical support—what we typically consider to be ‘objective’ data. Commonly, the facts speak for themselves and they can reveal disturbing death penalty trends and practices by legislatures, states, and departments of corrections.” She noted that, “It’s quite the irony that, over the years, concerns about the morality of the death penalty are viewed as obsolete or outmoded, at least in the United States. As a country, we focus more on what we have become rather than what we want to be on a deeper and more profound level. We’ve lost our ethical compass.”
A team of pro bono lawyers at Jenner & Block, headed by alum Gabriel Gillett ’11, worked diligently with Green to complete the brief over the course of a month. Much of Jenner & Block and the Stein Center’s work depended on research Denno has been doing in the field for more than three decades. This is the fourth amicus brief the Stein Center has filed related to execution methods—all four have relied on Denno’s expertise.
“Most of us write scholarship,” Green said. “Some of it is theoretical and meant to promote scholarly understanding, but some of it is meant to be useful in actually pushing the development of the law. I think it’s worth recognizing that [Denno’s] scholarship matters to how courts think about and how lawyers litigate these cases.”
For Gillett, a partner at Jenner & Block’s Chicago office, working on the brief with Fordham felt natural. “Jenner & Block is in many ways like Fordham, in that there’s really a strong commitment to pro bono and public service,” he explained. “It’s just so naturally in the firm’s DNA—it is a part of everything we do.”
Jenner & Block’s pro bono practice is extensive; last year, the firm’s lawyers contributed over 85,000 pro bono hours, and The American Lawyer has ranked them number one in pro bono ten times in the last 13 years. “It’s been great to partner the skill and drive of Jenner & Block’s great lawyers with the people who know this issue inside and out at Fordham,” he said.
Denno praised Green and Jenner & Block’s collaboration and adherence to the moral underpinnings of a capital case. “The group firmly planted a moral compass into their arguments, along with the evidence-based information that should be changing the Court’s mind. Such an approach shows how ethics-centered lawyering can strengthen the foundation for building a case as well as shepherd inspiring legal standards.”
Recently, the Court has shown less interest in hearing capital cases, as evidenced in their October 5 decision to deny certiorari. Reflecting on the decision, Gillett said, “While we are disappointed that the Court declined to hear the case, we are hopeful that the perspective we have offered—and the framework we have articulated—is useful in other challenges in the future.”