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Finding Bickel Gold in a Hill of Beans

Ohio State Public Law Working Paper No. 81

Center for Interdisciplinary Law and Policy Studies Working Paper Series No. 54

Cato Supreme Court Review, 2006

23 Pages Posted: 13 Sep 2006  

Douglas A. Berman

Ohio State University (OSU) - Michael E. Moritz College of Law

Abstract

The Supreme Court's decision to consider in Hill v. McDonough a death row defendant's challenge to Florida's lethal injection protocol resulted in widespread legal confusion and the disruption of executions nationwide. The Court's subsequent ruling in Hill raised more legal questions than it answered and ensured that death row defendants would continue to disrupt scheduled executions by pursuing litigation over lethal injections protocols.

But, though harmful to the orderly administration of capital punishment, the Supreme Court's work in Hill has its virtues. The Court's consideration of Clarence Hill's claims brought greater (and long needed) scrutiny to the particulars of lethal injection protocols. And the narrow ruling in Hill presents a valuable opportunity for other institutions to grapple more fully with the difficult issues raised by any method of state killing.

Consequently, Hill might be lauded for reflecting Professor Alexander Bickel's wise insight that the Supreme Court ought sometimes seek to avoid resolution of certain constitutional claims. But, for the Hill decision to produce a kind of Bickel gold, legislators and executive officials must take up the Supreme Court's invitation to start doing a better job regulating how the state kills.

Keywords: judicial restraint, cruel and unusual punishment

JEL Classification: K14, K42

Suggested Citation

Berman, Douglas A., Finding Bickel Gold in a Hill of Beans. ; Center for Interdisciplinary Law and Policy Studies Working Paper Series No. 54; Cato Supreme Court Review, 2006. Available at SSRN: https://ssrn.com/abstract=929722

Douglas A. Berman (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Street
Columbus, OH 43210
United States
614-688-8690 (Phone)

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