‘‘First, do no harm,’’ is a common aphorism for the medical profession.

If the Supreme Court was judged by this principle, its work

licenses. The Court’s decision to consider Clarence Hill’s challenge

to Florida’s lethal injection protocol resulted in widespread legal

confusion and the disruption of executions nationwide. The Court’s

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,

consideration of Hill’s claims has brought greater (and long needed)

scrutiny to the particulars of lethal injection protocols. And the

to grapple more fully with the difficult issues raised by any

method of state killing.

Bickel’s wise insight that the Supreme Court ought sometimes

seek to avoid resolution of certain constitutional claims. Professor

Bickel suggested that the Supreme Court should, in some settings,

avoid definitive resolution of certain constitutional questions to

allow other (more democratic) branches of government to take a

*William B. Saxbe Designated Professor of Law, Moritz College of Law at the Ohio

State University.

at length ‘‘the passive virtues’’); see also Guido Calabresi, A Common Law for

the Age of Statutes 16–30 (1982) (discussing Bickel’s visions of and suggestions for

constitutional adjudication).

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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.

The historical evolution of execution methods in the United States

story turned somewhat monotonous about twenty years ago: starting

in the 1980s, nearly every capital jurisdiction began to move away

from diverse execution techniques—ranging from hanging and firing

squads to the electric chair and the gas chamber—and embraced

all of the more than 600 executions carried out over the last decade

have been by lethal injection, and thirty-nine of the forty capital

jurisdictions in the United States now rely on lethal injection as their

The nearly uniform embrace of lethal injection might suggest that

this method of execution has been developed and refined to ensure it

is the soundest way to kill a condemned defendant. But, as colorfully

origins of lethal injection as an execution method is hardly inspiring:

[Oklahoma] State Rep. Bill Wiseman, a Republican from

Tulsa, suggested that there had to be a better way to execute

writings about the evolution of execution methods. See, e.g., Deborah W. Denno,

Lethally Humane? The Evolution of Execution Methods in the United States, in

America’s Experiment with Capital Punishment: Reflections on the Past, Present, and

Future of the Ultimate Penal Sanction 693 (James R. Acker et al. eds., 2d ed. 2003);

Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox

Behind State Uses of Electrocution and Lethal Injection and What It Says About Us,

63 Ohio St. L.J. 63, 124 (2002).

States 9–20 (Apr. 2006).

1; see also John Gibeaut, It’s All in the Execution: Prosecutors Fear Limitless Civil

Rights Complaints Over Lethal Injection Procedures, ABA Journal, Aug. 2006, at 17,

18 (noting that of the ‘‘38 states with the death penalty, 37 use lethal injection, as do

the federal government and the military’’). Nebraska is the one state that still relies

exclusively on the electric chair as its execution method.

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criminals than electrocution, a process that had fallen out of

public favor because it was increasingly viewed as brutal

and violent. Wiseman consulted doctors, who refused to

help, citing their oath to save lives, not take them. He got

the same response from scientists and other medical professionals.

‘‘I muttered to colleagues that it looked as if I would

need to find a veterinarian to tell me how to ‘put down’

condemned prisoners,’’ Wiseman recalled in a 2001 article

in The Christian Century magazine.

Enter A. Jay Chapman, Oklahoma’s state medical examiner,

a doctor who had been responsible for pronouncing inmates

dead after electrocutions in Colorado. Chapman had no pharmacological

training, just an opinion and a willingness to

help. During a meeting with Wiseman, he dictated what was

to become the new national template: ‘‘An intravenous saline

drip shall be started in the prisoner’s arm, into which shall

be introduced a lethal injection consisting of an ultra-shortacting

barbiturate in combination with a chemical paralytic

agent.’’. . . Chapman was quoted as saying in [a recent]

report. ‘‘I didn’t do any research. . . . It’s just common knowledge.

The widespread affinity for lethal injection appears even more

troubling given how execution protocols have been adopted and

implemented throughout the United States. A recent report from

Human Rights Watch has this disturbing summary of the development

and application of lethal injection procedures:

The three-drug sequence was developed in 1977 by an Oklahoma

medical examiner who had no expertise in pharmacology

or anesthesia and who did no research to develop any

expertise. Oklahoma’s three-drug protocol was copied by

Texas, which in 1982 was the first state to execute a man by

lethal injection. Texas’s sequence was subsequently copied by

almost all other states that allow lethal injection executions.

Drawing on its own research and that of others, Human

Rights Watch has found no evidence that any state seriously

investigated whether other drugs or administration methods

would be ‘‘more humane’’ than the protocol it adopted.

Adopted Method Chosen with Little Scientific Basis, Austin American-Statesman,

May 28, 2006, available at www.statesman.com/news/content/news/stories/local/

05/28execute.html.

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Corrections agencies continue to display a remarkable lack of

due diligence with regard to ascertaining the most ‘‘humane’’

way to kill their prisoners. Even when permitted by statute

to consider other drug options, they have not revised their

choice of lethal drugs, despite new developments in and

knowledge about anesthesia and lethal chemical agents. They

continue to use medically unsound procedures to administer

the drugs. They have not adopted procedures to make sure

the prisoner is in fact deeply unconscious from the anesthesia

before the paralyzing second and painful third drugs are

Writing in a similar vein, Professor Deborah Denno has spotlighted

problems with execution procedures attributable to ‘‘vague

lethal injection statutes, uninformed prison personnel, and skeletal

or inaccurate lethal injection protocols. When some state protocols

provide details, such as the amount and type of chemicals that

executioners inject, they often reveal striking errors, omissions, and

As lethal injection became the prevailing method of execution,

some commentators questioned the purported humaneness of the

raised a variety of (unsuccessful) legal challenges to these protocols

reported the results of the postmortem analysis of executed prisoners,

reached this conclusion:

as a method of execution violates the Eighth Amendment’s prohibition of cruel and

unusual punishments).

Oct. 7, 2003, at A1; Amnesty International, Lethal Injection: The Medical Technology

of Execution (Jan. 1998), at http://web.amnesty.org/library/Index/ENGAC

T500011998?open&ofENG-TWN#LAB (last checked August 15, 2006).

some of the unsuccessful challenges to lethal injection protocols up through 2002).

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Failures in protocol design, implementation, monitoring and

review might have led to the unnecessary suffering of at

least some of those executed. Because participation of doctors

in protocol design or execution is ethically prohibited, adequate

anesthesia cannot be certain. Therefore, to prevent

unnecessary cruelty and suffering, cessation and public

became the focal point for new court challenges by death row defendants.

Defendants due to be executed by lethal injection asserted

the standard three-drug lethal injection protocol violated the Eighth

Amendment’s prohibition of cruel and unusual punishment.

Throughout 2005, however, lower state and federal courts continued

to reject death row defendants’ assertions of constitutional flaws in

As his execution date approached, Clarence Hill was just another

death row prisoner having little success arguing that the standard

lethal injection protocol was unconstitutional. Convicted and sentenced

to die in the 1980s, Hill had challenged his death sentence

on various grounds in state and federal court for over two decades.

After a November 2005 death warrant finally scheduled his execution

for January 24, 2006, Hill filed another state motion for postconviction

public records concerning Florida’s lethal injection procedures. On

January 17, 2006, a week before Hill’s scheduled execution date,

Hill’s state lawsuit was resolved when the Florida Supreme Court

its prior decision that Florida’s lethal injection protocol was constitutionally

The Lancet, Vol. 365 (9468), April 16, 2005, at 1412.

181 S.W.3d 292 (Tenn. 2005); Baze v. Rees, No. 04-CI-01094 (Ky. Cir. Ct. July 8, 2005);

Brown v. Crawford, 408 F.3d 1027 (8th Cir. 2005).

evidentiary hearing in the trial court to explore more fully the soundness of Florida’s

in part).

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After his lack of success in the state courts, and with his scheduled

execution date only days away, Hill brought his claims to federal

court by filing a civil rights action under 42 U.S.C. § 1983. The district

court concluded that Hill’s action was procedurally barred as a

successive habeas petition, and the Eleventh Circuit affirmed that

ruling in a decision rendered only hours before Hill was scheduled

Circuit rejected Hill’s attempt to bring his claim as a section 1983

some aspects of lethal injection protocols.

Because Hill’s arguments in lower courts had failed, and because

the Supreme Court in the past had regularly denied review in cases

challenging lethal injection protocols, Florida officials began the

state’s execution process soon after the Eleventh Circuit rejected

Hill’s appeal. At roughly 6 p.m. on January 24, 2006, Hill was

strapped to a gurney and IV lines were run into his arms as the

execution team awaited the expected denial of Hill’s appeal to the

Supreme Court. Hill was required to lay on the gurney for an hour

anticipating his execution while everyone wondered why final word

Finally, Justice Anthony Kennedy, acting on behalf of the Court,

issued a stay to allow the Supreme Court more time to consider

Hill’s claims. Initial word about Hill’s case hinted that the Court

might be interested in the merits of his Eighth Amendment challenge

to Florida’s lethal injection protocol. But it subsequently became

clear that the Court granted certiorari only to address the procedural

question of whether Hill should have been permitted to pursue a

section 1983 claim to challenge Florida’s execution methods even

Cir. 2004)).

Sentinel, Jan. 26, 2006, at A1.

25, 2006), at http://www.scotusblog.com/movabletype/archives/2006/01/court to

hear f.html.

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It was hard to understand why the Supreme Court granted certiorari

of whether a section 1983 action could be used to challenge the

constitutionality of a method of execution. The Court’s unanimous

to the constitutionality of an execution method could be brought as

a section 1983 action. Of course, lower federal courts had rebuffed

Hill’s efforts to challenge Florida’s execution protocol via a section

Court certainly had reason to be troubled by the Eleventh Circuit’s

claim was considered on the merits below.

Supreme Court created extraordinary uncertainty about the constitutionality

of a standard execution method used by nearly every capital

jurisdiction in the country. The unique attention given to Hill’s

seemingly routine case suggested that the justices, perhaps troubled

concluded that standard lethal injection protocols were constitutionally

problematic. After all, if Hill’s substantive constitutional claim

was sure to be unavailing on the merits—as lower courts nationwide

had repeatedly concluded—why would the Supreme Court be

unduly concerned that Hill’s claim was rejected in the proper procedural

posture? It was hard to understand why the Supreme Court,

with its limited time and docket, would care about the procedural

attack on Florida’s lethal injection protocol.

puzzling, the consequences of the certiorari grant quickly became

stay entered in another Florida capital case, produced a de facto

moratorium on executions in Florida: Governor Jeb Bush announced

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that the Court’s actions would keep him from signing any more

effect on lethal injection litigation and on state efforts to carry out

scheduled executions. Richard Dieter, the executive director of the

Death Penalty Information Center, observed after the Supreme Court

on death row should be ‘‘filing something just like Clarence Hill as

quickly and dynamically to new filings from death row prisoners

Missouri execution to allow more time for a lethal injection challenge.

state’s lethal injection process, and an execution had to be postponed

indefinitely because California could not find doctors willing to

Times, Feb. 2, 2006, at 5B.

Civil Rights Claim, Knight Ridder Newspapers, Jan. 25, 2006, available at www.

fadp.org/news/ts-20060125 (last checked August 15, 2006).

could fill many volumes. The Death Penalty Information Center has chronicled most of

the major highlights on a special section of its website. See Death Penalty Information

Center, Special Webpage on Lethal Injections, at http://www.deathpenaltyinfo.org/

article.php?did1686&scid64 (last visited Aug. 14, 2006) [hereinafter DPIC Lethal

Injections Page]. In addition, the Death Penalty Clinic at the University of California

Boalt Hall School of Law has maintained a web page entitled ‘‘Resources Regarding

Challenges to Lethal Injection’’ at https://www.law.berkeley.edu/clinics/dpclinic/

resources.html, which includes a state-by-state collection of materials relating to

recent lethal injection litigation.

District Court for the Western District of Missouri recently ordered a halt to all

executions in the state until the state significantly modified its execution procedures.

See Mike Nixon, Execution Ruling Sets up Change in Missouri’s Future, Daily Record

(Kansas City, Mo.), July 11, 2006, available at http://findarticles.com/p/articles/

mi qn4181/is 20060711/ai n16527562.

still on-going. See Order Reflecting Stipulation of Parties to Continue Hearing to

September, in Morales v. Woodard, No. 5:06-cv-00219-JF (N.D. Cal. Apr. 27, 2006),

available at https://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection%

20Documents/California/Morales/Morales%20Dist%20Ct/Order%20to%20Continue.

pdf (last checked August 15, 2006).

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judges stayed executions scheduled for April and May based on

district judge barred the Federal Bureau of Prisons from executing

three defendants scheduled to be executed in May as a result of

But while court actions delayed or fully blocked scheduled executions

in many jurisdictions, other states moved forward with lethal

North Carolina, a federal judge ordered monitoring of the state’s

lethal injection process by medically trained personnel, and the state

completed a scheduled execution in April after arranging for a doctor

to monitor a machine indicating the defendant’s degree of consciousness

brought by many defendants did not block executions in the three

states that have historically made the greatest use of the death penalty.

Texas, Oklahoma, and Virginia collectively carried out more

than a dozen executions using standard lethal injection protocols

Supreme Court, but the justices repeatedly refused to intervene without

giving any explanation for granting or upholding stays in some

cases and denying stays in others.

Judge Boyce Martin, commenting in one of many cases subject to

create:

O’Neill, Execution As Science Experiment, The Independent (Raleigh, NC), Apr. 26,

2006, at www.indyweek.com/gyrobase/Archive?authoroid%3A13853 (last checked

August 15, 2006).

Court of Criminal Appeals stayed one execution because of the defendant’s challenge

to the lethal injection process, but that stay was lifted only two days later. See Pamela

A. MacLean, Lethal Injection Stays Inconsistent in U.S., The Legal Intelligencer, May

23, 2006, at 4.

2006 WL 1313365 (6th Cir. May 12, 2006), reh’g en banc denied, 447 F.3d 976 (6th

Cir. 2006).

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[T]he dysfunctional patchwork of stays and executions going

on in this country further undermines the various states’

effectiveness and ability to properly carry out death sentences.

We are currently operating under a system wherein

condemned inmates are bringing nearly identical challenges

to the lethal injection procedure. In some instances stays are

granted, while in others they are not and the defendants are

executed, with no principled distinction to justify such a

result. This adds another arbitrary factor into the equation

of death and thus far, there has been no logic behind the

Supreme Court’s decision as to who lives and who dies. . . .

No doubt the march toward death is powerful. Currently,

however, the march is anything but orderly. The current

administration of the death penalty in light of the pending

directions. . . . The arbitrariness of death penalty administration

procedural matter.’’ Rather, administration of the death penalty

can only be made more arbitrary by the possibility that

show in court that the practice of lethal injection violates

the Eighth Amendment’s prohibition of cruel and unusual

punishment, while other currently similarly situated inmates

will have already been put to death through a method

questions at oral argument suggested the justices were interested in

exploring the basic soundness of standard lethal injection protocols.

Questioning of counsel was not confined to the narrow procedural

issue raised in the case; the justices asked broad questions about the

Justice Scalia asked Hill’s counsel whether the Eighth Amendment

the denial of rehearing en banc).

(2006) (No. 05-8794), (Apr. 26, 2006), available at http://www.supremecourtus.gov/

oral arguments/argument transcripts/05-8794.pdf.

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counsel why Florida’s legislature regulated how pets are euthanized

observation:

Although the question before the court was the procedural

one of how a challenge to lethal injection can be raised by

a death row inmate who has exhausted the normal course

of appeals, the intense argument showed that it was not easy

to separate procedure from substance, at least with phrases

In short, oral argument raised the prospect that fundamental issues

surrounding the constitutionality of standard lethal injections protocols

proved more compelling than its ruling’s bite.

On June 12, 2006, the Supreme Court overruled the Eleventh Circuit

Court of Appeals and allowed Hill to proceed with his civil

‘‘intense’’ oral argument covering lots of ground, Justice Kennedy’s

opinion for the unanimous Court disposed of the case as a straightforward

application of prior precedent. The Court’s milquetoast

opinion starts by stating that ‘‘Hill’s suit . . . is comparable in its

essentials to the action the Court allowed to proceed under § 1983

reiterates that challenges to execution protocols can be brought as

section 1983 actions: ‘‘In the case before us we conclude that Hill’s

N.Y. Times, Apr. 27, 2006, at A18.

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After narrowly resolving the merits, the Court briefly addresses

prosecutors’ concern that lethal injection litigation brought through

section 1983 actions could be used as a tactic to delay executions.

Here is part of the Court’s response to the practical problems raised

Filing an action that can proceed under § 1983 does not entitle

the complainant to an order staying an execution as a matter

of course. Both the State and the victims of crime have an

important interest in the timely enforcement of a sentence.

Our conclusions today do not diminish that interest, nor do

they deprive federal courts of the means to protect it.

is an equitable remedy. It is not available as a matter of right,

and equity must be sensitive to the State’s strong interest in

enforcing its criminal judgments without undue interference

from the federal courts. . . .

equitable powers to dismiss suits they saw as speculative or

filed too late in the day. Although the particular determinations

made in those cases are not before us, we recognize

that the problem they address is significant. Repetitive or

piecemeal litigation presumably would raise similar concerns.

The federal courts can and should protect States from

dilatory or speculative suits, but it is not necessary to reject

The equities and the merits of Hill’s underlying action are

also not before us. We reverse the judgment of the Court

of Appeals and remand the case for further proceedings

likely to infuriate capital litigators than to illuminate future lethal

to challenge applicable execution protocols in federal court through

regarding how the merits of these actions should be examined. In

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addition, the Court did not address the potentially complicated interplay

of lethal injection challenges brought as section 1983 actions

and those brought in state court or in federal habeas actions. As one

The justices granted perhaps thousands of death row inmates

a significant new avenue for collateral appeal considerably

less restrictive than the usual petition for a writ of habeas

corpus. . . . But the justices also left the lower courts with

precious little guidance on how to determine which section

1983 cases to hear and which ones to send packing. . . . By

extending the possibility of a civil rights suit to routine procedures,

invited nearly all the nation’s 3,370 death row inmates to vie

last-minute lethal injection claims, the Court’s magniloquent discussion

have an important interest in the timely enforcement of a sentence,’’

why did the Supreme Court take nearly five months to issue an

opinion that does little more than reaffirm a recent precedent? And

if ‘‘[r]epetitive or piecemeal litigation’’ impacts this ‘‘important interest,’’

shouldn’t the Supreme Court have just taken up the ‘‘equities

and the merits of Hill’s underlying action’’?

displayed a kind of recklessness concerning how lower courts would

have to decipher and respond to the Court’s opaque work. By taking

envelop standard lethal injection protocols; by delivering a narrow

opinion, the Court provided little help for lower courts caught up

in tumultuous litigation over these protocols. There are many confounding

lower courts must sort through these critical issues:

(1) What are the appropriate standards for examining and adjudicating

an Eighth Amendment claim lodged against a particular

execution method?

June 16, 2006, at http://www.abanet.org/journal/ereport/jn16inject.html.

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(2) How should a section 1983 action challenging an execution

method take account of prior challenges brought in state court

or in a federal habeas action?

(3) Should a federal habeas court decline to consider challenges

to standard execution methods now that such claims can be

regularly brought as section 1983 actions?

death, sufficient evidence to make out an Eighth Amendment

claim against standard lethal injection protocols?

(5) What obligations might a state have under the Eighth Amendment

to improve its execution method or to investigate and

utilize more humane methods of execution?

(6) When exactly can and should a death row defendant bring a

section 1983 action against a lethal injection protocol, and what

particular considerations should influence whether a stay is

justified?

In light of these and other questions raised, but not resolved, by

pendency, the results of this litigation vary state by state, case by

granted a stay of execution and a preliminary injunction to allow

further investigation into the constitutionality of the state’s execution

unanimously declared that state’s standard lethal injection protocol

sentiment concerning lethal injection challenges by death row defendants: ‘‘I find

Appellant’s request to be spared the imposition of his legally imposed punishment

because it might cause him to suffer or experience pain unpersuasive (and rather

ironic) as his murderous acts have been the cause of the ultimate pain and suffering

dissenting in part).

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order or consensus concerning how lethal injection claims were being

As lethal injection litigation continues to roil state execution efforts

and embroil federal courts, it is easy to be critical and cynical about

to dodge the toughest questions raised by constitutional challenges

litigation remains chaotic, confused, and convoluted, and the

inspired, and then did not help resolve, litigation-driven de facto

moratoriums on executions now in place in numerous states. Opponents

require Texas and some other active death penalty states to review

their lethal injection protocols as they move forward with executions.

Moreover, anyone genuinely interested in federalism, or sentencing

consistency, or orderly government has to find the frantic, patchwork

involves the stressful and inefficient expenditure of the time and

energies of lower courts and lots of lawyers—unseemly and counterproductive

to the sound operation of criminal justice systems.

But Professor Debby Denno, a leading expert on lethal injection

protocols and execution methods generally, has suggested reasons

First, it’s unanimous (and the oral arguments gave some

suggestion that it wouldn’t be unanimous if it was favorably

can stop litigation that could continue forever by allowing inmates to refocus their

complaints every time a state changes its execution protocol’’).

questions concerning the constitutionality of standard lethal injection protocols. See

Warren Richey, At High Court, No Rush to Resolve Conflicts over Lethal Injection,

Christian Science Monitor, May 22, 2006, at 2.

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decided and even indicated that the case might not be affirmatively

decided). Second, . . . section 1983 doesn’t require

inmates to jump through as many procedural hoops and has

a potentially richer field of case law for them to draw upon

of a cut down procedure based in part on Nelson’s own

deteriorating veins. Cut down procedures were rare in 2004

and they are even rarer now. But the use of chemicals prompting

Hill’s challenge is generic to every lethal injection in the

country; in other words, every state uses the same three

chemicals that Hill challenged and there was no mention

of Hill’s particular anatomical limitations (nor were they

relevant). While the Court did not address head on the substantive

aspects of lethal injection, it does mention the fact

that Hill’s challenge concerns ‘‘a foreseeable risk of gratuitous

and unnecessary pain.’’ If the Court thought the issue

were totally frivolous, the case wouldn’t have garnered

their attention.

its importance both to attorneys and to courts. It sends a

message that departments of corrections ([DOC]) are going

to continue to be scrutinized and perhaps spotlighted more

than in the past. Incrementally, the [DOC]’s are being pressured

to alter their protocols or to switch to another method.

While in the grand scheme of things this movement today

may not seem like a big deal, I think it’s useful to remember

that the Court has directed more attention to lethal injection

in the last two years than it has to any other method of

execution in the last 110 years. Put in context, seemingly

death penalty opponents, her final insights spotlight the jurisprudential

suggests, the Supreme Court’s new attentiveness to execution methods

sends a powerful message to all death penalty jurisdictions—

namely that, through section 1983 actions, federal courts can and

Hill from THE Expert (June 12, 2006), at http://sentencing.typepad.com/sentencing

law and policy/2006/06/insights on hil.html (quoting e-mail from Deborah

Denno).

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will be independently scrutinizing execution protocols and thereby

shining light on death penalty procedures long shrouded in secrecy.

As detailed in Part I above, the development and administration

of lethal injection protocols have often been haphazard and sloppy.

Internal state reviews of standard lethal injection protocols have

often been non-existent or perfunctory. Valuably, the Supreme

receiving much greater (and long needed) scrutiny not only from

lower courts, but also from public policy groups and the media.

injection procedures could be brought through section 1983 actions,

which essentially ensures that every capital jurisdiction’s execution

methods will continue to be put under the microscope.

Moreover, and perhaps even more valuably, the narrow ruling in

to confront directly the difficult issues raised by any execution

method. The particulars of any process of state killing necessarily

implicate complicated medical issues and intricate administrative

concerns. Courts presented with constitutional challenges to particular

execution methods—especially in last-minute litigation brought

by prisoners with swiftly approaching execution dates—are not well

suited to sorting through alternative execution technologies, debatable

medical evidence, and the administrative issues that states face

in carrying out scheduled executions. Though federal courts may

effectively play a watch-dog role ensuring that unreasonable execution

methods are not utilized, it is unwise and unseemly for individual

federal district judges to be tasked with developing detailed

regulations to govern state execution procedures. The Supreme

felt that particular revisions and improvements to lethal injection

protocols should be pioneered by other, more democratically responsive

and accountable branches of government.

effectuation of Professor Alexander Bickel’s recommendation that

the Supreme Court sometimes resist broad constitutional rulings.

Bickel proposed that the Supreme Court sometimes avoid definitive

resolution of contentious constitutional questions in order to allow

other (more democratic) branches of government to take a second

look at important issues. Bickel suggested that the Supreme Court,

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by utilizing various decision-avoiding techniques, could avoid premature

resolutions of critical issues that would benefit from further

exploration by the political branches of government and by the

has more recently touted ‘‘decisional minimalism’’—judicial efforts

to keep judgments ‘‘shallow and narrow’’—as a means to foster

by the Supreme Court is ‘‘democracy-forcing’’ and thus

valuable as a means to ‘‘leave open the most fundamental and difficult

constitutional questions [and] also . . . promote democratic

and essentially invited other governmental branches to give more

focused attention to the legal, policy, and practical issues surrounding

lethal injection protocols. Rather than begin micromanaging execution

legal institutions to respond to identified problems in a way that

might entirely eliminate the need for a contentious constitutional

decision or should at least help frame the constitutional issue in

more precise terms.

Encouragingly, corrections officials in a few states have started to

states have also responded to lethal injection litigation by proposing

See Alexander M. Bickel, The Supreme Court, 1960 Term—Foreword: The Passive

Virtues, 75 Harv. L. Rev. 40 (1960). Professor Bickel expanded his ideas into a book

Court 3–4 (1999); Cass R. Sunstein, The Supreme Court, 1995 Term—Foreword:

Leaving Things Undecided, 110 Harv. L. Rev. 6, 6–7 (1996).

June 28, 2006. Though on-going lethal injection litigation surely played a role in

Ohio’s changes to its lethal injection protocol, another contributing factor was the

problems that delayed the May execution of a condemned prisoner for more than

an hour as prison officials scrambled to find a suitable vein for completing the lethal

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may only be motivated by a desire to avoid or thwart constitutional

litigation, they still represent a positive first step toward a sounder

approach to the administration of capital punishment.

But, disconcertingly, a central institutional player in our nation’s

systems of government has not yet gotten involved. Despite headline-

making lethal injection litigation raging in numerous states, not

a single state legislature has even conducted hearings on standard

lethal injection protocols to explore whether sounder execution

methods might be developed. Legislatures could—and, in my view,

should—at the very least hold public hearings to examine the range

of medical and administrative issues raised by lethal injection protocols.

Conflicting and evolving medical evidence about lethal injection

protocols is being presented in federal district courts around

the country, and individual federal judges are being asked to assess

whether complicated procedures are medically and practically

sound. In some instances, federal judges feel compelled to issue

detailed regulations that a state must follow to proceed with executions.

In a country committed to democratic rule, these life-anddeath

judgments ought to be carefully considered in the first instance

by legislatures, not by individual judges.

states have legislatively regulated how animals can be killed. It is

odd and disconcerting that the killing of humans does not get at least

an equal measure of legislative attention. The legislative inaction is

especially disappointing because an improved execution process

‘‘medical experts say the current method of lethal injection could

further notes, even though ‘‘[s]witching to an injection method with

less potential to cause pain could undercut many of the lawsuits,

Dying Out, San Francisco Chronicle, June 18, 2006, available at www.sfgate.com/

cgi-bin/article.cgi?file/chronicle/archive/2006/06/18/INGAUJDQMS1.DTL (noting

that ‘‘California has proposed altering its three-drug lethal injection protocol . . .

to ensure [a condemned prisoner] isn’t conscious when the paralyzing and heartstopping

drugs are injected’’).

23, 2006, at A1.

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. . . so far, in this chapter of the nation’s long and tangled history

with the death penalty, no state has moved to alter its lethal injection

Though one can surely fault state legislatures for failing to investigate

and better regulate execution protocols, the (non)actions of our

nation’s legislature also deserves criticism. The national significance

of disrupted state capital justice is arguably of great moment. Especially

if one credits evidence that the death penalty deters—and

recall that President Bush and other death penalty supporters in

Congress have long justified an affinity for capital punishment by

claiming the death penalty ‘‘saves lives’’—a major disruption in the

administration of the death penalty could put the innocent lives

of potential murder victims at risk. Beyond deterrence concerns,

uncertainty surrounding scheduled executions dramatically affects

the personal fate of death row defendants and the emotional state

of the family members of both murder victims and those scheduled

to be executed.

But while many lives hang in the balance, Congress has not even

begun to explore what it might be able to do to address the medical

and legal issues surrounding lethal injection protocols. Whatever

one’s views on the death penalty, the haphazard litigation over lethal

injection has to be considered a national disgrace. As spotlighted

above, neither proponents nor opponents of the death penalty can be

pleased with the frantic, patchwork, and discrepant lethal injection

litigation playing out in courtrooms nationwide. And this litigation

necessarily requires—and will continue to require—the stressful and

inefficient expenditure of the time and energies of lower courts and

hundreds of lawyers and will continue to be counter-productive to

the sound operation of criminal justice systems.

Notably, in early 2005, members of Congress worked through a

weekend to pass legislation to impact the litigation surrounding the

possible removal of Terri Schiavo’s feeding tube. Though the Schiavo

law did not prevent removal of Terri Schiavo’s feeding tube, the

entire episode revealed that Congress and President Bush believe

that the fate of a single citizen can be a matter of national importance

and that swift legislative intervention may be appropriate when

contentious life-and-death issues are unfolding in the states.

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In the life-and-death setting of lethal injection protocols, Congress

could, at the very least, hold hearings to explore the range of medical

methods. Congress could also, of course, weigh in on the merits

by adopting a particular protocol for federal executions or by encouraging

states to adopt a particular new lethal injection protocol.

Though there are pros and cons to all possible congressional interventions,

the essential question is whether Congress should continue

to sit on the sidelines while life-and-death issues unfold in a haphazard

way through litigation in various federal courts.

but also telling. It has become common sport for politicians and

commentators to assail justices and judges for intervening in significant

policy debates that seem more the province for legislative action.

decided to dodge the most contentious issues presented by the ongoing

lethal injection litigation. Other branches of government must

now demonstrate that they can and will soundly govern in this

controversial area now that the Supreme Court has indicated that,

for the time being, it will stay out of the way. If other branches

don’t step up, not only will the model of constitutional adjudication

suggested by Bickel and Sunstein suffer a blow, but complaints of

judicial activism will ring even more hollow.

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