Date of this Version
49 University of Richmond Law Review (2015), pp 731-762
When people learn that I study lethal injection, they are usual-ly curious to know more (or at least they are polite enough to ask questions). Interestingly, the question that arises most often—from lawyers, law students, and laypeople—is why states behave as they do. In the wake of botched executions and ample evidence of lethal injection‘s dangers, why do states fail to address their execution procedures‘ systemic risks? Similarly, why do states so vigorously resist requests to disclose their execution procedures‘ details? This symposium essay takes a stab at answering these ques-tions. In the interest of full disclosure, I should admit that I first came to these cases as a litigator challenging the constitutionality of the procedures in question.1 During these cases, I became con-vinced—and remain convinced—that some states (perhaps many) do not devote sufficient care to their lethal injection procedures and that consequently those procedures can create a substantial risk of serious pain in violation of the Eighth Amendment‘s pro-hibition on cruel and unusual punishment. Though many states‘ procedures have changed in important ways in the past few years, the recent record of mistakes and botched executions sup-ports this conclusion. Scholarship in this area aptly documents lethal injection‘s risks, so I will only briefly summarize those dangers here.4 In-stead, this essay ponders why states insist on carrying on as they always have when the problems seem so egregious. I admit that my contribution here is speculative; it is impossible to know for certain what drives state officials‘ behavior. (Even if we were to ask state officials, it is doubtful they would all give a fully candid answer. Some of them might not even know themselves.) I also fully concede that motivations differ from state to state, and even from official to official. Politicians, correctional officials, and exe-cution team members all likely have different motives for their behavior.5 States may also keep their procedures secret for one reason and refuse to revise them for other reasons. Finally, I acknowledge that some states are more careful than others, and that while there are surely bad actors, there are also responsible officials who work hard to create safe and painless execution methods.