How could (and should) Congress clean up the lethal injection mess?

April 30, 2006

How could (and should) Congress clean up the lethal injection mess?

No matter what one's view on the death penalty, the lethal injection litigation over the last four months has to be seen as a national disgrace. And lately I have been pondering whether and how Congress could and should do something to try and clean up the lethal injection mess.

Proponents of capital punishment have to be troubled that lethal injection litigation has produced de facto moratoriums on executions in California, Florida, Missouri and in the federal system. Opponents of capital punishment have to be troubled that Texas and a few other states have not seriously examined their lethal injection protocols as they proceed with executions.

Moreover, anyone genuinely interested in federalism, or sentencing consistency, or orderly government has to find the patchwork and disparate litigation taking place in federal district courts nationwide unseemly and counter-productive. And don't get me started on the stressful and inefficient expenditure of the time and energies of lower federal courts and state lawyers in all this capital litigation.

Of course, the Supreme Court shifted this litigation mess into high gear with its cert grant in Hill, and it might clean up some of the mess whenever it decides Hill. But, because Hill is only formally concerned with a narrow procedural issue and because SCOTUS seems deeply divided on most death penalty matters, I fear the Court's decision in Hill might make the lethal injection litigation mess worse, not better.

So, with this background, how about another branch of the federal government stepping in? Congress could, at the very least, hold hearings to explore the medical matters at issue in all the litigation. Congress might also weigh in on the merits by encouraging states to adopt a particular lethal injection protocol. Or Congress might just clean up some procedural issues by authorizing a specialized tribunal — the federal circuit? — to consider these challenges in the first instance.

I can see pros and cons to all possible Congressional action in this context. But the basic question and concern is whether Congress should just sit on the sidelines while important matters of life and death unfold in such a haphazard (and unjust?) way.

UPDATE: After finishing this post, I recalled Congress's role in last year's hub-bub over Terry Schiavo where only one life was involved. In contrast, if you credit any claims about the deterrent impact of executions, a lot more innocent lives (of potential murder victim) — as well as guilty lives of murders and the emotional lives of family members of victims and defendants — are at stake in the on-going lethal injection litigation. Where are the vocal "culture of life" advocates when we need them?