Friday, January 8, 2021
Deborah W. Denno (Fordham University School of Law) has posted Back to the Future with Execution Methods (in THE EIGHTH AMENDMENT AND ITS FUTURE IN A NEW AGE OF PUNISHMENT. New York: Cambridge University Press 212-233 (Meghan J. Ryan & William W. Berry III, eds. 2020)) on SSRN. Here is the abstract:
Despite three United States Supreme Court decisions upholding lethal injection protocols, inmates continue to challenge the method's constitutionality, and states cling to scientifically ununiformed procedures to generally ensure the death penalty's survival. Lethal injection, however, is simply the last in a long line of disastrous execution methods. This chapter explores the future of execution methods in light of states' efforts to repeat or borrow from the past, beginning with current changes to lethal injection and the inclusion of prior methods. Those previous methods include electrocution, the firing squad, and the recent adoption of nitrogen hypoxia by several states—all as constitutional substitutes for lethal injection. Older lethal injection drugs are also coming back into play, such as sodium thiopental, despite their current unavailability. This chapter concludes that states cannot go "back to the future" to re-invent or rebrand the past's problematic execution methods. While the future of execution methods is impossible to predict, twenty-one states have now abolished the death penalty, and the death penalty's use has remained near record lows. Quite possibly, current execution methods may follow the same path as hanging, which has been abolished in all fifty states. Likewise, the abolishment of the death penalty as a whole may come faster than states' abilities to change the ways they execute inmates.