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Nebraska law professor: Lethal injection changing; Supreme Court could set new rules

Tuesday, January 27th, 2015

Eric Berger, a University of Nebraska law professor who has litigated and studied  lethal injection, says the U.S. Supreme Court may use a new case arising out of Oklahoma to clarify the legal standard governing challenges to lethal injection procedures.

Because of several botched executions and difficulties in obtaining drugs, many states, including Oklahoma, have changed execution protocols since 2008, when the Supreme Court in Baze v. Rees upheld lethal injection.   Some states have gone to only one or two drugs. Others are trying new drug combinations and refusing to identify their suppliers of execution chemicals.

“Several states, if not all have changed procedures since the Baze decision,” Berger  said. “The question presented in the new Supreme Court case is how the Baze standard should apply in procedures different than the one at issue in Baze.”

Further compounding the problem, many states conceal crucial details of their execution procedure. In a paper recently published in the Boston College Law Review, Berger discusses the due process implications of states’ secrecy over lethal injection protocols.

“Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution because the state can conceal crucial details of its execution procedure, effectively insulating it from judicial review.”

On Jan. 23, the U.S. Supreme Court agreed to hear Glossip v. Gross,  a case contending that  Oklahoma’s current lethal injection procedure violates the  Eighth Amendment ban on cruel and unusual punishment.

The case involves three inmates who argue that Oklahoma’s three-chemical procedure posed a significant risk of terrible suffering. One of the three was scheduled to be executed Thursday, but Oklahoma’s Attorney General has requested a delay while the U.S. Supreme Court reviews the case.

A fourth inmate involved in the case, Charles Warner, was executed Jan. 15.  The Supreme Court declined to delay his execution just days before announcing it was granting review in the case.  A case can be accepted with the vote of four justices, but it take five to delay an execution.

As a private practice attorney, Berger was involved in two death penalty cases, one of which was decided by the U.S. Supreme Court.  In Hill vs. McDonough, a Florida case decided in 2006, the Supreme Court confirmed that inmates may challenge the constitutionality of lethal injection using a civil rights statute. Berger also worked on Taylor vs. Crawford, which challenged the constitutionality of  Missouri’s lethal injection procedure. The court in that case became the first trial court to hold unconstitutional a state’s lethal injection procedure.  The 8th U.S. Circuit Court of Appeals subsequently reversed that decision and upheld Missouri’s procedure in 2007.

Berger has continued to study lethal injection since joining the UNL faculty in  2007. He can be contacted at eric.berger@unl.edu or 402-472-1251.