Legally Indefensible: Requiring Death Row Prisoners to Prove Available Execution Alternatives

The U.S. Supreme Court has rejected Eighth Amendment challenges to state lethal injection procedures, concluding that the condemned prisoners failed to show that the execution process in their states posed sufficient risks of pain and suffering to be deemed cruel and unusual punishment. In addition, the Court added to this burden a requirement that prisoners identify a known and available alternative method of execution that entails a lesser risk of pain than the challenged procedure. The requirement that petitioners proffer and prove an alternative method may turn out to be unworkable. If a condemned prisoner is ever to meet this standard, he must have access to relevant information regarding the department of correction’s execution protocol, other procedures considered but rejected, and the department’s capacity to perform other procedures. This information is largely unavailable because of the secrecy that surrounds execution procedures.