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"Lethal Injection and the Problem of Constitutional Remedies"

By Douglas A. Berman

The title of this post is the title of this new paper by Professor Eric Berger available via SSRN. Here is the abstract: Many states' lethal injection procedures contain serious flaws that create a significant risk of excruciating pain, but, more often that not, courts uphold those procedures against Eighth Amendment challenges.  This Article argues that remedial concerns significantly shape ? and misdirect ? courts' approaches to lethal injection.  Many courts, including the U.S. Supreme Court in Baze v. Rees, fear that any lethal injection remedy would unduly burden the state and interfere with executions.  Accordingly, they sharply limit the underlying Eighth Amendment right. This Article contends that these remedial anxieties are misplaced here...continue to full post

Full post as published by Sentencing Law and Policy on December 18, 2008 (boomark / email).