The Executioners' Dilemmas

32 Pages Posted: 19 Mar 2015

See all articles by Eric Berger

Eric Berger

University of Nebraska at Lincoln - College of Law

Date Written: March 17, 2015

Abstract

Despite several prominent recent botched executions, states usually resist external pressure to improve their lethal injection procedures. This symposium contribution explores why states fail to address lethal injection’s systemic risks and, relatedly, why they so vigorously resist requests to disclose execution procedure details. This analysis is necessarily speculative; it is impossible to know for certain what drives states’ behavior in this area, and motivations likely differ from state to state and from official to official. That said, a constellation of epistemic, structural, strategic, and political factors likely shape much official behavior in this area. Examining those factors more closely can help us better understand why so many states have acted so irresponsibly in designing and implementing their lethal injection procedures. Of course, these explanations hardly excuse states’ frequent indifference to the risk of pain their execution procedures create. Collectively, however, they help shine important light more generally on why state officials sometimes seem insensitive to constitutional values.

Keywords: lethal injection, capital punishment, death penalty, Eighth Amendment, civil rights litigation, constitutional law, institutional design, incentives

Suggested Citation

Berger, Eric, The Executioners' Dilemmas (March 17, 2015). University of Richmond Law Review, Vol. 49, No. 3, 2015, Available at SSRN: https://ssrn.com/abstract=2579942

Eric Berger (Contact Author)

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

103 McCollum Hall
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Lincoln, NE 68583-0902
United States
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