by Eric Berger, Associate Professor of Law, University of Nebraska College of Law
The U.S. Supreme Court last week granted certiorari in Glossip v. Gross, in which plaintiffs challenge the constitutionality of Oklahoma’s lethal injection procedure. Glossip raises important questions about how the Eighth Amendment standard announced by the Court in 2008 in Baze v. Rees applies to experimental drug combinations. However, the questions presented in Glossip do not directly address the crucial, related question of whether states must disclose their lethal injection procedures to inmate plaintiffs. To this extent, the Court is putting the cart before the horse.
Indeed, many death row inmates lack important information about the procedures with which the state plans to execute them. The problem appears to be worsening as states increasingly conceal more details of their execution procedures. Courts, for their part, usually reject inmates’ requests to learn this information.
In a recent law review article, I argue that these state practices and judicial responses are wrong. To be sure, some execution procedures, upon closer examination, may be safe and constitutional, but some certainly are not, and courts have no way of distinguishing the safe from the dangerous without inquiring into the details of the procedure. To this extent, courts have repeatedly blessed execution procedures about which they know virtually nothing.