Although Murdering Prisoners is Different from All Other Government Remedies, Legal Scholar says There are Less Procedural Safeguards for Executions, Leading to Unaccountability and Secrecy

Persons Scheduled to be Murdered by the Government ("death row") are Disproportionately Black

From [HERE] Inn the 1970s, the United States Supreme Court famously declared that “death is different” from all other punishments and, as such, required the provision of heightened procedural safeguards to ensure that its application was not cruel or unusual. But in a new article, Death Penalty Exceptionalism and Administrative Law, University of Richmond law professor and capital punishment scholar Corinna B. Lain argues that in the context of administrative law, the doctrine has been “turn[ed] … on its head.”

Lain’s article, published in the April 2021 volume of the Belmont Law Review, critically examines the application of administrative law norms in the execution setting ­and the determination of the legality and constitutionality of lethal injection. Lain finds that, contrary to the constitutional command, condemned prisoners receive fewer procedural protections and see their claims addressed in a manner that falls short of the minimal standards ordinarily applied to administrative decision-making. “In the administrative law context,” Lain writes, “‘death is different’ means suspension of the rules that ordinarily apply to administrative decision-making. It means that when the state is carrying out its most solemn of duties, those subject to its reach receive not more protection, but less.”

Lain reviews the defects in the administrative process from lawmaking through the execution itself. The problems, she writes, begin with the inadequate guidance that lethal-injection statutes give to prison administrators on how executions should be carried out, to the wide discretion and deference the law affords to corrections department personnel who lack the necessary expertise to make key execution-related decisions, to the lack of accountability and transparency in the lethal injection process and the anti-democratic role administrative law plays in maintaining secrecy. 

The failure of states to maintain typical administrative law standards in setting death-penalty procedures results in what Lain describes as “a world where lethal-injection drug protocols are decided by Google searches and other decision-making processes that would be patently unacceptable in any other area of administrative law,” shielded behind a wall of secrecy. Ultimately, she says, when it comes to administrative law, death is in fact different, “but in a perverse way.”