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Eric Berger, Lethal Injection Secrecy and Eighth Amendment Due Process , 55 B.C.L. Rev. 1367 (2014), http://lawdigitalcommons.bc.edu/bclr/vol55/iss5/2
The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure the state plans to use. This Article argues that the Eighth Amendment includes an implicit due process right to know such information about the state’s planned method of execution. Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution, because the state can conceal crucial details of its execution procedure, effectively insulating it from judicial review. As in other constitutional contexts, then, due process norms require that the government provide people with information necessary to protect their other constitutional rights. These norms similarly require courts, rather than administrative agencies, to judge the execution procedure’s constitutionality. Judicial recognition of this due process right would both protect Eighth Amendment values and also encourage states to make their execution procedures more transparent and less dangerous. Just as importantly, judicial recognition would also discourage secretive governmental practices more generally, thereby promoting openness and fair process as important democratic values.