NEW SCHOLARSHIP: Death is Indeed Different in U.S. Administrative Law — Condemned Prisoners Receive FEWER Procedural Protections

In 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 (pic­tured) 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.”

Lain argues that lethal-injec­tion statutes across the coun­try fail to pro­vide mean­ing­ful guid­ance to prison per­son­nel in how exe­cu­tions should occur, and essen­tial­ly del­e­gate law­mak­ing author­i­ty to unelect­ed prison offi­cials who are in no posi­tion to make those types of pol­i­cy deci­sions. ​“From the num­ber of drugs in the pro­to­col, to the type of drugs used, to the qual­i­fi­ca­tions of the exe­cu­tion­ers — these and a host of oth­er deci­sions that deter­mine whether lethal injec­tion is tor­tur­ous or humane are left for prison per­son­nel to fig­ure out for them­selves,” Lain writes. 

These ​“gross­ly-under reg­u­lat­ed” statutes have wor­ri­some impli­ca­tions on admin­is­tra­tive law, because they del­e­gate the entire­ty of deci­sion-mak­ing to ill-equipped prison admin­is­tra­tors. This is exac­er­bat­ed by ​“a bedrock assump­tion of admin­is­tra­tive law — agency exper­tise.” Administrative law pre­sumes that the agency to which respon­si­bil­i­ty for admin­is­ter­ing the law is del­e­gat­ed has rel­e­vant exper­tise. However, Lain writes, ​“when it comes to lethal injec­tion, cor­rec­tions depart­ment per­son­nel do not have any.” 

Lain notes that when it comes to lethal-injec­tion exe­cu­tions — a process that requires med­ical exper­tise but is uneth­i­cal for doc­tors to par­tic­i­pate in — respon­si­bil­i­ty for devel­op­ing exe­cu­tion pro­to­cols often falls to cor­rec­tions depart­ment direc­tors who have ​“no train­ing or exper­tise remote­ly rel­e­vant to lethal injec­tion.” The ​“breath­tak­ing­ly incom­pe­tent” agency deci­sion-mak­ing that fol­lows, she says, results in deeply flawed pro­to­cols and botched exe­cu­tions. ​“Torturous deaths at the hands of the state are a pre­dictable result of the unlim­it­ed dis­cre­tion that DOCs have to make deci­sions about mat­ters decid­ed­ly out­side their area of exper­tise,” Lain writes, ​“par­tic­u­lar­ly when no one is watching.”

Perhaps to cov­er up this incom­pe­tence, states rou­tine­ly obstruct trans­paren­cy and account­abil­i­ty relat­ing to lethal-injec­tion pol­i­cy and prac­tice. Typically, Lain explains, ​“state cor­rec­tions depart­ments devise lethal injec­tion pro­to­cols entire­ly out­side the purview of the pub­lic eye.” States delib­er­ate­ly facil­i­tate these anti-demo­c­ra­t­ic prac­tices by exempt­ing their cor­rec­tions depart­ments from the stan­dard rule­mak­ing require­ments of pub­lic notice and com­ment con­tained in state admin­is­tra­tive pro­ce­dure laws, refus­ing to dis­close infor­ma­tion about agency-deci­sion mak­ing and lethal-injec­tion pro­to­cols, del­e­gat­ing deci­sion-mak­ing process­es to lawyers to bol­ster secre­cy, and employ­ing oth­er infor­mal mea­sures to shield their lethal-injec­tion process­es from pub­lic scruti­ny. Lain empha­sizes that trans­paren­cy — the foun­da­tion of open gov­ern­ment — is ​“con­spic­u­ous­ly absent” when it comes to lethal injec­tion, and the secre­cy that shields lethal injec­tion from pub­lic account­abil­i­ty is “[f]ar from the trans­paren­cy that marks the ordi­nary admin­is­tra­tive decision-making process.” 

Lain con­cludes that ​“when the death penal­ty meets admin­is­tra­tive law, admin­is­tra­tive law norms get sul­lied and the death penal­ty los­es the one com­fort one might oth­er­wise have: that when the state takes human life, it takes extra care to do it right. In the admin­is­tra­tive law con­text, death penal­ty excep­tion­al­ism turns ​‘death is dif­fer­ent’ on its head. And I can­not help but con­clude, stand­ing at the inter­sec­tion of these two great bod­ies of law, that the result is not good for either.”