Friday, 2 March 2007

When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What it Says About Us

OHIO STATE LAW JOURNAL [Vol. 63: 63 (2002)]

1 of 41

When Legislatures Delegate Death: The Troubling Paradox Behind State Uses

of Electrocution and Lethal Injection and What it Says About Us


This article discusses the paradoxical motivations and problems behind legislative changes from one method of execution to the

next, and particularly moves from electrocution to lethal injection. Legislatures and courts insist that the primary reason states

switch execution methods is to ensure greater humaneness for death row inmates. History shows, however, that such moves were

prompted primarily because the death penalty itself became constitutionally jeopardized due to a state’s particular method. The

result has been a warped legal “philosophy” of punishment, at times peculiarly aligning both friends and foes of the death

penalty alike and wrongly enabling legislatures to delegate death to unknowledgeable prison personnel. This article first

examines the constitutionality of electrocution, contending that a modern Eighth Amendment analysis of a range of factors, such

as legislative trends toward lethal injection, indicates that electrocution is cruel and unusual. It then provides an Eighth

Amendment review of lethal injection, demonstrating that injection also involves unnecessary pain, the risk of such pain, and a

loss of dignity. These failures seem to be attributed to vague lethal injection statutes, uninformed prison personnel, and skeletal or

inaccurate lethal injection protocols.

The article next presents the author’s study of the most current protocols for lethal injection in all thirty-six states where

anesthesia is used for a state execution. The study focuses on a number of criteria contained in many protocols that are key to

applying an injection, including: the types and amounts of chemicals that are injected; the selection, training, preparation, and

qualifications of the lethal injection team; the involvement of medical personnel; the presence of general witnesses and media

witnesses; as well as details on how the procedure is conducted and how much of it witnesses can see. The study emphasizes that

the criteria in many protocols are far too vague to assess adequately. When the protocols do offer details, such as the amount and

type of chemicals that executioners inject, they oftentimes reveal striking errors and ignorance about the procedure. Such

inaccurate or missing information heightens the likelihood that a lethal injection will be botched and suggests that states are not

capable of executing an inmate constitutionally. Even though executions have become increasingly hidden from the public, and

therefore more politically palatable, they have not become more humane, only more difficult to monitor.

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