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Lethal injection is the leading method of execution in this country, adopted for use by all but one of the 37 death penalty states, as well as the federal government. It is unsurprising, then, that questions have been raised in the wake of recent cases subjecting this widely accepted form of punishment to an Eighth Amendment attack. Such inquiries are also relevant to the outcome in Hill v. McDonough, No. 05-8794, argued before the U.S. Supreme Court on April 26. While Hill was purportedly concerned only with a procedural matter-whether lethal-injection challenges can be brought under 42 U.S.C. 1983-the oral arguments revealed that the method’s substantive aspects were too intertwined with procedure to ignore. A look at both lethal injection’s procedure and substance in historical context shows that the more intriguing question about the success of lethal-injection challenges is not “Why now?,” but rather “Why not earlier?” Given that lethal injection was first enacted nearly 30 years ago, why is it only within the past year or so that constitutional challenges have made so much headway? Not a new controversy Contrary to popular perception, lethal-injection challenges have been ongoing for decades, arising immediately upon the heels of the method’s hasty legislation in 1977. These early challenges were fueled by most of the issues raised with injection over the past few years, including the inhumane application of the method’s three chemicals (sodium thiopental, pancuronium bromide and potassium chloride), as well as the poor selection, training and qualifications of lethal-injection teams. Yet changes in the fields of both law and medicine over the interim 30 years help explain why lethal-injection challenges have achieved a significance in current death penalty debates that would have been unachievable earlier. The most important change should be the most obvious, although it is not sufficiently acknowledged: Substantially more information on lethal injection has been uncovered this past year than ever before. Indeed, until the recent rash of Freedom of Information Act requests and other means of acquiring knowledge about each state’s lethal-injection protocol, the process was virtually underground. For example, my 2001 nationwide survey of all lethal-injection protocols showed that much of the information provided by state department of corrections officials was far too vague to assess adequately. When state protocols did offer crucial details, such as the amount and type of chemicals that executioners inject, they often revealed striking errors and ignorance about the procedure. See Deborah W. Denno, “When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Lethal Injection and What It Says About Us,” 63 Ohio St. L.J. 63 (2002). Such ignorance is heightened by the lack of medical personnel involved in the process. In Morales v. Hickman, No. C06219 JF (N.D. Calif. Feb. 14, 2006), for example, the refusal by two doctors to monitor an execution-one of two solutions the state selected-ultimately spurred the court’s decision to hold an evidentiary hearing on the method this September. The court in Brown v. Beck, No. 5:06-CT-3018-H (E.D.N.C. April 17, 2006), avoided this dilemma by siding with the state’s proposal to use a machine, not doctors, to assess the inmate’s level of consciousness. Yet that recommendation has been heavily criticized because it disregards the necessary role of doctors in interpreting the machine’s results. The N.J. moratorium Indeed, in 2004, a New Jersey appellate court ordered a halt to all executions because the state’s lethal-injection procedures lacked medical expertise-an outcome so striking it helped prompt a statewide death penalty moratorium that remains in effect. In re Readoption with Amendments of Death Penalty Regulations N.J.A.C. 10A:23, by the New Jersey Department of Corrections, No. A-0899-01T1 (N.J. App. Div. Feb. 20, 2004). A year later, a Kentucky judge found it cruel and unusual for the state’s lethal-injection protocol to enable an inmate’s neck to be catheterized, a decision swayed by a department of corrections doctor who testified he would refuse to conduct the procedure, and that those who would were unqualified to do so. Baze v. Rees, No. 04-CI-1094 (Franklin Co., Ky., Cir. Ct. July 8, 2005). These developments hark back to the key question of why lethal-injection challenges have made a legal mark now. Again, the increased availability of information and the changing role of physician participation in the execution process have been critical. At no time in the history of this country have doctors or medical organizations been this committed to evaluating a method of execution-either as testifying experts in litigation, as public commentators on the method’s worthiness or as researchers studying the method’s effects on executed inmates. While some doctors have participated in lethal injections over the years, either as assisters or actual executioners, their contributions were furtive and, it appears, sporadic. Of course, enhanced physician input and documentation on lethal injection have been accompanied by substantial shifts in the ways courts and the public have viewed the death penalty. Whether because of disturbing discoveries of innocence among death row inmates, the narrowing of certain classes of individuals as death eligible (such as juveniles) or other reasons, the courts and the public have grown more skeptical of the process. There is a new demand for hard data to assess issues and arguments that, historically, have been far less scrutinized. With respect to lethal injection specifically, the surge in the nature and degree of resources available helps to answer the “Why now?” and “Why not earlier?” questions. The more we know about how lethal injection is administered, the more problems we detect with it and the more aware we are of alternative execution methods that states have-for whatever reason-refused to even investigate. Why not investigate these alternatives now? Deborah W. Denno is a professor at Fordham University School of Law.

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