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Nondelegating Death, Alexandra L. Klein

Scholarly Articles

Most states’ method of execution statutes afford broad discretion to executive agencies to create execution protocols. Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s nondelegation and separation of powers doctrines. State courts routinely use the nondelegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts. Despite its uncertain status, the nondelegation doctrine is a useful analytical tool to examine decision-making in capital punishment.

This Article critically evaluates responsibility for administering capital punishment through the lens of nondelegation. It analyzes state court decisions upholding broad legislative delegations to …