The Executioners’ Dilemmas

Eric Berger *

When people learn that I study lethal injection, they are usually curious to know more (or at least they are polite enough to ask questions). Interestingly, the question that arises most often—from lawyers, law students, and laypeople—is why states behave as they do. In the wake of botched executions and ample evidence of lethal injection’s dangers, why do states fail to address their execution procedures’ systemic risks? Similarly, why do states so vigorously resist requests to disclose their execution procedures’ details?

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* Associate Professor of Law, University of Nebraska College of Law. I thank Ginger Anders, Anne Duncan, Jim Gibson, Megan McCracken, and the participants in the University of Richmond Law Review’s Allen Chair Symposium on Lethal Injection, Politics, and the Future of the Death Penalty for extremely helpful suggestions on earlier drafts. I also thank Nate Clark and Krystia Reed for splendid research assistance and Leah Stiegler, Sheherezade Malik, and the other wonderful editors of the University of Richmond Law Review for organizing this symposium. A McCollum Grant helped support the writing of this symposium contribution.