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Courts, Culture, And The Lethal Injection Stalemate, Eric Berger
Courts, Culture, And The Lethal Injection Stalemate, Eric Berger
Nebraska College of Law: Faculty Publications
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. Events on the ground tell a very different story. 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 …
Gross Error, Eric Berger
Gross Error, Eric Berger
Nebraska College of Law: Faculty Publications
Glossip v. Gross epitomizes judicial deference gone berserk. In rejecting an Eighth Amendment challenge to Oklahoma’s lethal injection protocol, the United States Supreme Court rested its holding on several forms of deference. Closer examination demonstrates that each of these unsupported deference determinations was, at best, contestable and, at worst, simply wrong. Far from being anomalous, such under-theorized deference reflects more generally the Court’s willingness to utilize various stealth determinations to manipulate outcomes in constitutional cases. The understandable concern that frivolous lethal injection challenges will clog courts and delay executions likely motivated the Court’s approach. Remarkably, though, the Court did not …
The Executioners‘ Dilemmas, Eric Berger
The Executioners‘ Dilemmas, Eric Berger
Nebraska College of Law: Faculty Publications
When people learn that I study lethal injection, they are usual-ly curious to know more (or at least they are polite enough to ask questions). Interestingly, the question that arises most often—from lawyers, law students, and laypeople—is why states behave as they do. In the wake of botched executions and ample evidence of lethal injection‘s dangers, why do states fail to address their execution procedures‘ systemic risks? Similarly, why do states so vigorously resist requests to disclose their execution procedures‘ details? This symposium essay takes a stab at answering these ques-tions. In the interest of full disclosure, I should admit …