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.”