COURTS, CULTURE, AND THE LETHAL INJECTION STALEMATE.

• Author: Berger, Eric

TABLE OF CONTENTS INTRODUCTION 4 I. THE LETHAL INJECTION LANDSCAPE 12 A. A View from the Court 12 B. Stalemates 16 1. The Death Penalty Stalemate 18 2. The Lethal Injection Stalemate 23 II. NORMS UNDERLYING THE LETHAL INJECTION STALEMATE 29 A. The Great Variety of Norms and Actors Obstructing Lethal Injection 33 1. Abolitionism 33 2. Foreign Governmental Norms 35 3. Pharmaceutical Company Ethics and Institutional Investor Concerns 37 4. Federal Law, Import Controls, and the Mission to Ensure Safe Drugs 42 5. Medical Professional Ethics 45 6. The Anesthetic Eighth Amendment 48 B. The Connections Between Death Penalty Problems and the Lethal Injection Stalemate 53 C. Pro-Death Penalty Normas 59 III. IMPLICATIONS 63 A. Implications for the Eighth Amendment and Capital Punishment 63 B. The Surprising Implications for Constitutional Theory 68 1. Corporate Values and the Subversion of Federalism's Choice Maximization 68 2. The Surprising Effectiveness of Uncoordinated Actors 71 3. Changing Norms and Judicial Irrelevance 74 4. Constitutional Norms at the Periphery of Public Attention 78 CONCLUSION 81 INTRODUCTION

For the third time in about a decade, the U.S. Supreme Court in 2019 upheld a state lethal injection protocol against an Eighth Amendment challenge. In Bucklew v. Precythe, (1) the Court, by a 5-4 vote, reiterated the great deference it extended to states in Baze v. Rees (2) and Glossip v. Gross (3) The Baze-Glossip-Bucklew trilogy (or Bucklew trilogy) articulates an Eighth Amendment test that minimizes the potential for judicial interference in state lethal injection procedures. (4) The short takeaway is that states enjoy broad leeway to design and implement lethal injection protocols. (5) States can do what they want.

A glance at recent newspapers, however, tells a different story. Far from carrying out executions at will, many death penalty states are struggling to execute at all. (6) Lethal injection problems did not always interfere with executions so regularly. (7) Bucklew demonstrates that the judiciary's attitudes towards these issues have not changed. Nor has some states' resolve to carry out executions. Still, execution rates in the United States are at their lowest in decades. (8) While numerous factors have contributed to this sharp decline, problems with lethal injection are a big part of the story.

The question, then, is why states struggle to carry out executions when the Supreme Court has been so deferential in this area. Many states have the death penalty and want to use it. Usually, when neither the federal government nor courts interfere, states can carry out their preferred policies. (9) This maxim has not been true in the case of lethal injection. (10) Why has the Bucklew trilogy mattered so little?

Various observers offer different theories for this turn of events, all incomplete. A majority of Supreme Court Justices blame the decline in executions on anti-death penalty "[a]ctivists" (11)--that is, persons whose primary ideological commitment is to obstructing and ultimately ending capital punishment. (12) At oral argument in Glossip, Justice Alito even accused these activists of waging "guerilla war against the death penalty." (13) Some state officials, hoping to persuade courts to leave their execution plans alone, advance similar arguments. (14) This explanation carries some truth but is woefully incomplete.

Professors Gibson and Lain offer a more sophisticated and scholarly theory. They contend that European governments are largely responsible for states' lethal injection problems. (15) These governments forbid pharmaceutical companies in Europe from distributing drugs that could end up in American death chambers, thus accomplishing abolitionist ends through the "international moral marketplace." (16) Their admirable study sheds insightful light on an important development, but it too provides a single explanation for a phenomenon requiring a multifarious one.

In fact, the people and institutions whose actions have impeded executions in recent years are both numerous and diverse. They are motivated by a wide range of distinct, albeit related, norms, and they often do not take a position on the morality or wisdom of capital punishment. (17) Pharmaceutical corporations, institutional investors, doctors, nurses, medical associations, capital lawyers, foreign governments, federal drug regulators, reporters, academics, and others--including, yes, abolitionist activists--all play a part. (18) To be sure, some of these actors share a general aversion to the death penalty, but few of them are conspiring with the purpose of halting executions. To the contrary, each group has its own distinct motivations and goals, and they rarely coordinate with each other. Indeed, far from working together, these actors sometimes deliberately avoid collaborating, lest they compromise their own institutional interests.

To be clear, the norms driving these actors are nothing new. Capital lawyers, for instance, have worked on these issues for decades and even achieved some modest victories in the past. (19) For a variety of complicated reasons, though, over roughly the past dozen years, these many groups' collective actions have dramatically slowed the pace of executions. Past limited victories helped pave the way for more consequential developments. A few flames became a larger fire.

This fire has not, however, consumed capital punishment altogether. Pro-death penalty norms remain strong in parts of the country and have helped preserve the death penalty, even as numerous competing norms and forces have chipped away at it. (20) Ultimately, the collision of these conflicting norms has resulted in a lethal injection stalemate.

I use the word "stalemate" to describe the enduring struggle between death penalty supporters and opponents that has no victor in sight. (21) Capital punishment has suffered some serious blows in recent years, but it persists. The death penalty's supporters have been unable to revive the practice, but its opponents also have not managed to kill it altogether. The status quo is an ugly draw.

Some basic facts illustrate the death penalty's decline. Twenty-eight states have the death penalty, (22) but only twelve have carried out an execution since the start of 2015. (23) Executions and capital sentences have declined steeply over the past decade. (24) Public support for the death penalty has also declined, as has the number of death penalty states. (25)

Still, it is premature for abolitionists to celebrate the death penalty's demise. Capital punishment is a state and local institution, (26) and public support for it remains strong in some states. (27) There are still over twenty executions annually in the United States, (28) and if some struggling death penalty jurisdictions are able to resume executions again, there could be many more. Of course, the U.S. Supreme Court could outlaw capital punishment, as it temporarily did in 1972 in Furman v. Georgia. (29) Given the Court's composition today, however, it is wishful thinking to imagine the current Court doing anything of the kind.

Today's stalemate does not satisfy anyone. Capital punishment's supporters lament the infrequency of executions and the long delays inherent in the system. Opponents lament that the practice continues at all and cite voluminous evidence of the system's arbitrariness and injustice. The opponents have certainly gained substantial ground in recent years, but given the strong support for the death penalty in many states, particularly in the South, (30) it seems unlikely that total abolition will occur in the foreseeable future.

Numerous factors help explain the death penalty decline; a couple of recent, excellent books address this topic. (31) A significant cause, though, is the narrower--and often misunderstood--lethal injection stalemate. (32) Some states have had difficulty obtaining drugs for their lethal injection protocols, resulting in serious delays. Other states have badly botched executions and then halted further executions for years as they tried to figure out their next move. (33) States themselves have often compounded their own problems, haphazardly throwing together new protocols that heighten the risk of botches and open the door to time-consuming litigation. (34)

These lethal injection problems, in turn, have helped undermine support for capital punishment more generally. The death penalty is exorbitantly expensive with or without executions. (35) In states where executions have slowed to a crawl, people have begun to question the point of having the system at all, especially given the alternative of life in prison without the possibility of parole. (36) Well-publicized problems with lethal injection have become a symbol of capital punishment's broader deficiencies, which include, among others, wrongful convictions, racial bias, arbitrary application, and cost. (37) These problems, in turn, likely help dissuade medical personnel and pharmaceutical companies from participating in executions. After all, as public support for capital punishment drops, private entities participate in the capital system at their own peril. (38)

It is also risky politics for state officials to pursue executions too zealously, at least in those states where support for capital punishment is only modest. State officials routinely claim they cannot get execution drugs. (39) Sometimes, this claim is probably correct, but some states continue to execute regularly, (40) so the drugs are not impossible to obtain. As criticisms of capital punishment mount, state officials in ambivalent death penalty states have an increased incentive to keep a low profile on the issue and not go to great lengths to resume executions. (41) In short, there is likely a feedback loop between the death penalty's well-publicized problems, the decline in death sentences, botched executions, other lethal injection problems, and the recent...