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

By Deborah W. Denno / Ohio State Law Journal, on 1 January 2002

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. Suchinaccurate 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.

  • Document type Article
  • Countries list United States
  • Themes list Lethal Injection, Electrocution,