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Different lenses focus on distinct aspects of the same legal problem. Take the death penalty or, more specifically, methods of execution. Through a doctrinal lens, one might ask whether a particular method of execution creates a risk of excruciating pain incompatible with the Eighth Amendment’s prohibition of “cruel and unusual” punishments. Through an originalist lens, we consider the original meaning of the words “cruel” and “unusual.” Through a proceduralist lens, a key question is when a trial court may issue a stay of execution to permit closer judicial examination of an execution procedure (or some other alleged legal deficiency). And so on.
This Article focuses on the administrative-law lens, which highlights crucial and underappreciated considerations in method-ofexecution disputes. Though many courts—including the Supreme Court of the United States—neglect administrative-law concerns in method-of-execution cases, these concerns get to the heart of the legal problem. Both Congress and state legislatures, by necessity, delegate the design and implementation of their execution protocols to administrative agencies. However, those agencies, often state departments of corrections (“DOCs”), usually lack sound administrative procedure.
Eric Berger *
* Earl Dunlap Distinguished Professor of Law, University of Nebraska College of Law. I thank Anna Bickley, Caleb Jennings, and the other editors of the University of Richmond Law Review for hosting a superb symposium and for their excellent editorial assistance. A McCollum Grant supported the writing of this Article.