Georgetown Law Journal
In 2008, with Baze v. Rees, the Supreme Court broke decades of silence regarding state execution methods to declare Kentucky’s lethal injection protocol constitutional, yet the opinion itself did not offer much guidance. In the six years after Baze, legal challenges to lethal injection soared as states scrambled to quell litigation by modifying their lethal injection protocols. My unprecedented study of over 300 cases citing Baze reveals that such modifications have occurred with alarming frequency. Moreover, even as states purportedly rely on the Baze opinion, they have changed their lethal injection protocols in inconsistent ways that bear little resemblance to the original protocol evaluated in Baze and even differ from one execution to the next within the same state. States’ continuous tinkering often affects already-troubled aspects of their lethal injection procedures. The compendium of these deficiencies has led to some of the most glaring failures in lethal injection history.
An even more disturbing revelation relates to the lethal injection drugs used in these rapidly changing protocols. Recent drug shortages threaten many states’ abilities to carry out executions, and this Article presents evidence of the unfettered substitutions states have made in their desperate attempts to adhere to their execution schedules. These attempts include frequent drug switches that take place quickly, without oversight, and based purely on convenience and availability. The resulting unreliability and randomness heighten the risk that the execution process will violate the Eighth Amendment’s Cruel and Unusual Punishment Clause. As that risk increases, so does the tendency for states to retreat into secrecy regarding their lethal injection protocols.
For a growing number of states, alternative protocols also incorporate the use of compounding pharmacies to produce lethal injection drugs. Traditionally, compounding pharmacies are non-FDA regulated, small-scale pharmacies that make customized drugs on an as-needed basis in response to individualized prescriptions. This trend toward using compounding pharmacies is highly problematic. For example, state regulations are paltry. They also tend to differ from one state to the next, making it difficult to ensure that compounded drugs are held to consistently high standards of quality, safety, and effectiveness. Evidence shows, however, that proposed and newly adopted federal legislation regulating these pharmacies may create major obstacles for the use of compounded drugs in executions, leaving states without even this risky recourse.
Death-penalty opponents and medical professionals have long objected to lethal injection on the basis that the use of drugs to carry out executions links death to the practice of medicine. Ironically, that reliance on drugs may end up accomplishing what countless legal challenges could not: drug shortages have devastated this country’s execution process to an unparalleled degree. Rather than masking the “machinery of death,” the mimicry of medicine may end up dismantling it.
Deborah W. Denno,
Lethal Injection Chaos Post-Baze, 102 Geo. L. J. 1331
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/506