Baze Commentary: Protocol and Practice

Eric Berger, assistant professor at the University of Nebraska College of Law, had the following thoughts on the Baze decision. Eric worked on the lethal injection cases Taylor v. Crawford and Hill v. McDonough while an associate at Jenner & Block.

Kent Scheidegger’s interpretation, here, of the Baze opinion is consistent with the sweeping view of the case that pro-death penalty advocates will no doubt seek to promote. He predicts that lethal injection challenges in all states with written lethal injection protocols that look — on paper — to be “substantially similar” to that of Kentucky’s written protocol will be disposed of in short order. But his focus on the four corners of the written protocol belies the real nature of the challenges to lethal injection that will now resume around the country in the wake of the Baze decision.

What we know in states where litigators have gotten real discovery and conducted evidentiary hearings is that the actual administration of the three-drug formula often departs significantly from the state’s written protocol. For example, in Missouri, the State represented to the courts that a board-certified surgeon would administer 5 grams of thiopental.

Discovery, however, revealed that the surgeon could not calculate drug dosages and had given unknown lower amounts of thiopental to several inmates. We also know that simply revising the protocol does not ensure humane executions, if the protocols are not read and the executioners are not trained. For example, Tennessee revised its protocol to remove obvious errors in the description of the lethal injection process, but a federal court subsequently found that the execution personnel remained ignorant of their responsibilities and the dangers involved in the procedure.

Baze does not shut off inquiries into how states actually carry out their execution procedures. The issue of whether a particular state’s procedure is, in fact, “substantially similar” to Kentucky’s is a question of fact that can only be answered after factfinding into how a state’s protocol is actually carried out in practice. It is entirely possible, of course, that factfinding in a given state will reveal a procedure to be “substantially similar” to Kentucky’s. But should such factfinding uncover important differences, including discrepancies between the written protocol and the execution team’s actual practice – as was the case in Missouri and Tennessee – then such a state’s procedure could not be deemed “substantially similar.” This, of course, makes sense, because departures from the written protocol can greatly heighten the risk that an inmate will feel pain.

Therefore, going forward, it is crucial that lawyers challenging lethal injection have access to the evidence that will enable a court to know whether the procedures are actually being implemented in a way that inspires confidence that the inmates are not suffering excruciating pain. Hopefully, states will in fact get it right and amend not only their protocols but their practices with respect to training, qualifications, and execution equipment.

But courts should realize that they won’t be able to know this just by reading the written protocol.