The title of this post is the title of this new paper authored by Eric Berger now available via SSRN. Here is its abstract:
The Supreme Court’s 2019 decision in Bucklew v. Precythe reiterated the Court’s great deference to states in Eighth Amendment lethal injection cases. The takeaway is that when it comes to execution protocols, states can do what they want. Except they can't. Notwithstanding courts’ deference, executions have ground to a halt in numerous states, often due to lethal injection problems. State officials and the Court’s conservative Justices have blamed this development on “anti-death penalty activists” waging “guerilla war” on capital punishment. In reality, though, a variety of mostly uncoordinated actors motivated by a range of distinct norms has contributed to states’ lethal injection woes. These actors, such as doctors, pharmaceutical companies, and institutional investors, follow their own professional incentives, usually unrelated to the morality of capital punishment.
States’ recent execution difficulties raise important questions about the future of the Eighth Amendment and the American death penalty. As certain lethal injection protocols and executions themselves become less common, future courts might reconsider their deference in this area. The Eighth Amendment, after all, encompasses “evolving standards of decency,” which courts often measure with reference to changing state practices. Though constitutional doctrine has played only a bit part in the execution decline, that decline could eventually reshape constitutional doctrine.
This story also complicates long-accepted constitutional theories. While the traditional view is that federalism maximizes state policy choices so long as courts and Congress do not interfere, the lethal injection stalemate shows how non-governmental actors, even uncoordinated ones, can undermine state policies. Courts and the political branches in some states stand united in support of capital punishment. It is, therefore, noteworthy that unorganized actors pursuing their own institutional objectives have obstructed executions and even cast new long-term doubt on previously entrenched penological practices.
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