But Can it Be Fixed? A Look at Constitutional Challenges to Lethal Injection Executions

ELLEN KREITZBERG Santa Clara University - School of Law

DAVID RICHTER Santa Clara University - School of Law

Santa Clara Univ. Legal Studies Research Paper No. 07-28 Santa Clara Law Review, Vol. 47, No. 3, 2007

This article examines the constitutional challenge raised to California's lethal injection protocol (San Quentin Operating Procedure 770). We review the history of lethal injection executions in the U.S. and particularly in California. We explore Eighth Amendment challenges to the death penalty generally and to lethal injection procedures in particular, and finally we detail the evidence presented before Judge Jeremy Fogel in September 2006 on the California protocol for lethal injection executions.

The article demonstrates the basis for which Judge Fogel ultimately concluded that the California procedure, as written and as implemented was broken and suffered from a number of critical deficiencies. The many failings include the random selection and training of the execution team, the inadequate facilities provided for executions, a paucity of oversight for training and implementing executions, the inappropriate choice and administration of drugs, and an overall lack of professionalism in carrying out each execution.

We also examine the ethical conflict presented by the use of medical persons in executions as viewed from within the profession and by the public. We conclude by underscoring the need for transparency and congressional oversight of the procedures and their operations to ensure a more professional, appropriate, and constitutional process. Finally, we suggest taking the time to pause and evaluate our decision to relegate “death work” to prison guards and administrators.