Alexandra Klein of Washington and Lee University School of Law has posted “Nondelegating Death” (Ohio State Law Journal, Vol. 81 , 2020) on SSRN. The following is the abstract.
Most states’ method-of-execution statutes afford broad discretion to executive agencies to create execution protocols. Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s non-delegation and separation of powers doctrines. State courts routinely use the non-delegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts. Despite its uncertain status, the non-delegation doctrine is a useful analytical tool to examine decision-making in capital punishment.
This Article critically evaluates responsibility for administering capital punishment through the lens of non-delegation. It analyzes state court decisions upholding broad legislative delegations to agencies and identifies common themes in this jurisprudence. This Article positions legislative delegation in parallel with historic and modern execution practices that utilize responsibility shifting mechanisms to minimize participant responsibility in carrying out capital sentences and argues that legislative delegation serves a similar function of minimizing accountability in state-authorized killing.
The non-delegation doctrine provides useful perspectives on capital punishment because the doctrine emphasizes accountability, transparency, and perceptions of legitimacy, core themes that permeate historic and modern death penalty practices. Creating execution protocols carries a high potential for arbitrary action due to limited procedural constraints, secrecy, and broad statutorily enacted discretion. The decision to authorize capital punishment is a separate policy decision than the decision of how that punishment is carried out. This Article frames a more robust non-delegation analysis for method-of-execution statutes, and argues that legislators determined to utilize the penalty should carry greater accountability for investigating and selecting methods of execution and should not be allowed to delegate these decisions.
Klein, Alexandra, Nondelegating Death (September 22, 2020). Ohio State Law Journal, Vol. 81 , 2020, Available at SSRN: https://ssrn.com/abstract=3697264 or http://dx.doi.org/10.2139/ssrn.3697264
See also: Eric Berger, Death Penalty Administration: A Response to Alexandra Klein’s Nondelegating Death (Volume 81, Ohio State Law Journal Online Forthcoming).