Lethal Injection Secrecy and Eighth Amendment Due Process

77 Pages Posted: 15 Jun 2014 Last revised: 3 Dec 2014

See all articles by Eric Berger

Eric Berger

University of Nebraska at Lincoln - College of Law

Date Written: June 13, 2014


The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure the state plans to use. This Article argues that the Eighth Amendment includes an implicit due process right to know such information about the state’s planned method of execution. Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution, because the state can conceal crucial details of its execution procedure, effectively insulating it from judicial review. As in other constitutional contexts, then, due process norms require that inmates be permitted access to information necessary to protect other constitutional rights. These norms similarly require courts, rather than administrative agencies, to judge the execution procedure’s constitutionality. Indeed, judicial recognition of this due process right would not only protect Eighth Amendment values but would also encourage states to make their execution procedures more transparent and less dangerous. Just as importantly, judicial recognition would also discourage secretive governmental practices more generally, thereby promoting openness and fair process as important democratic values.

Keywords: lethal injection, capital punishment, death penalty, due process, right to information, government secrecy, adminstrative agencies, civil rights litigation, Eighth Amendment, Baze v. Rees, method of execution challenge, botched executions, right to civil discovery, constitutional remedies

Suggested Citation

Berger, Eric, Lethal Injection Secrecy and Eighth Amendment Due Process (June 13, 2014). Boston College Law Review, Vol. 55, 2014, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2450204

Eric Berger (Contact Author)

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

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States
402 472-1251 (Phone)

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