The Champion

January-February 2017 , Page 46 

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

By Megan McCracken

The Supreme Court has twice considered and rejected Eighth Amendment challenges to state lethal injection procedures, concluding in both cases that the condemned prisoners failed to show that the execution process in their states posed sufficient risks of pain and suffering to be adjudged cruel and unusual punishment.1 More broadly, the Court’s decisions in an array of lethal injection challenges have declined to seriously entertain claims that execution procedures are constitutionally infirm, while insisting that method-of-execution challenges not delay executions.2 Most recently, the Court reasserted the very high legal bar condemned prisoners must meet to satisfy the Eighth Amendment, and added to this burden a requirement that the plaintiff “identify a known and available alternative method of execution that entails a lesser risk of pain” than the challenged procedure.3 

In its 2008 Baze v. Rees plurality opinion, the Court established the legal standard for an Eigh

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