Death Penalty Exceptionalism and Administrative Law

Abstract

Prosecutors ask for death sentences, and judges and juries impose them, but the people who actually carry out those sentences are corrections department officials—administrative agency personnel. In this symposium contribution, I explore a little known nook of administrative law, examining how administrative law norms work in the execution setting of lethal injection. What I find is death penalty exceptionalism—the notion that “death is different” so every procedural protection should be provided—turned on its head. Lethal injection statutes just say “lethal injection,” providing no guidance whatsoever to those who must implement them. Prison personnel have no expertise in deciding what drugs to use or how to perform the procedure. And the usual administrative law devices that we rely on to bring transparency and accountability to the agency decision-making process are noticeably absent. The culmination of these irregularities is a world where lethal injection drug protocols are decided by Google searches and other decision-making processes that would never pass muster in any other area of administrative law. In the execution context, death penalty exceptionalism means that the minimal standards that ordinarily attend administrative decision-making do not apply. It means that when the state is carrying out its most solemn of duties, those subject to its reach receive not more protection, but less. In the end, when the death penalty meets administrative law, administrative law norms get sullied and the death penalty loses the one comfort one might otherwise have: that when the state takes human life, it takes extra care to do it right. What happens at the intersection of these two great bodies of law is a result not good for either.

Keywords: death penalty, capital punishment, administrative law