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Lethal Injection and the Problem of Constitutional Remedies

76 Pages Posted: 8 Dec 2008 Last revised: 2 Jun 2009

Eric Berger

University of Nebraska at Lincoln - College of Law

Date Written: December 5, 2008


Many states’ lethal injection procedures contain serious problems creating a significant risk of excruciating pain, but courts frequently 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. While some attention to remedies is appropriate, courts have distorted the remedial inquiry, mistakenly assuming that any remedy would be unduly burdensome. This distortion gives states incentives not to reform broken procedures but instead to argue that doing so would be too cumbersome. It also allows courts to uphold procedures that are not only dangerous but also the product of serious political process failures. Indeed, far from deserving judicial deference, states’ systemic lack of attention, transparency, and democratic deliberation require court oversight. Moreover, contrary to common wisdom, lethal injection actions seek only modest relief that would make executions much safer without interfering excessively in state affairs.

In allowing mistaken remedial concerns to dissuade real engagement with the merits in these cases, judges are abdicating their constitutional responsibility to oversee state practices threatening individual rights. Courts may instinctively look to remedial issues when determining the scope of a constitutional right, but, given that they do so, they should consider those issues more carefully, especially when state officials insulate the challenged practices from democratic processes. Until courts adopt a more careful approach to constitutional remedies, they will continue to under-enforce some constitutional rights and effectively bless inhumane practices.

Keywords: Eighth Amendment, death penalty, lethal injection, constitutional remedies, Baze v. Rees, structural injunctions

Suggested Citation

Berger, Eric, Lethal Injection and the Problem of Constitutional Remedies (December 5, 2008). Yale Law & Policy Review, Vol. 27, No. 2, 2009. Available at SSRN:

Eric Berger (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

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P.O. Box 830902
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