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Published online by Cambridge University Press: 24 February 2021
Capital punishment by lethal injection, which was expected to be the most safe and effective of available methods, can produce unusually cruel and inhuman death. In Heckler v. Chaney, inmates sentenced to death by lethal injection, as well as members of both the medical and legal communities, challenged the Food and Drug Administration’s (FDA) refusal to regulate certain drugs used for capital punishment by lethal injection. By declining to review the FDA’s nonenforcement decision, the Supreme Court also declined an opportunity to reevaluate its standard for determining cruel and unusual punishment, which upholds any method of execution that is no more unusually cruel than existing methods. This Comment examines the propriety of judicial and administrative regulation of capital punishment by lethal injection.
1 Keerdoja, , Witherspoon, , Burgower, & McDaniel, , A Civilized Way to Die, Newsweek, April 9, 1984Google Scholar, at 106.
2 Curran, & Casscells, , The Ethics of Medical Participation in Capital Punishment by Lethal Injection, 302 New Eng. J. Med. 226 (1980)CrossRefGoogle Scholar.
3 These states include: Ark. Stat. Ann. § 41-1352 (Supp. 1983); Idaho Code § 19-2716 (Supp. 1983); III. Ann. Stat. ch. 38, § 119-5 (Smith-Hurd Supp. 1984); Mass. Ann. Laws ch. 279, § 61 (Law. Coop. Supp. 1984); Mont. Code Ann. § 49-19-103(3) (1983) (prisoner given choice of hanging or lethal injection); Nev. Rev. Stat. § 176.355 (1979); N.J. Stat. Ann. §2C:49-2 (West Supp. 1984-85); N.M. Stat. Ann. §31-14-11 (Supp. 1983); N.C. Gen. Stat. § 15-187 (1983) (choice of lethal gas or lethal injection); Okla. Stat. Ann. tit. 22, § 1014 (West Supp. 1983); S.D. Codified Laws Ann. § 23A-27A-32 (Supp. 1984); Tex. Code Crim. Proc. Ann. art. 43.14 (Vernon Supp. 1984); Utah Code Ann. § 77-18-5.5 (1983) (choice of firing squad or lethal injection); Wash. Rev. Code § 10.95.180 (Supp. 1984) (choice of hanging or lethal injection).
4 See Brief for Respondents, Heckler v. Chaney, 105 S. Ct. 1649 (1985).
5 Letter from Georgetown University Law Center to American Society of Law & Medicine (Aug. 31, 1984) (discussing individuals and groups in health care who submitted an amicus brief to the Supreme Court for consideration in the case of Heckler v. Chaney, 105 S. Ct. 1649 (1985)) [hereinafter cited as Georgetown letter]. See generally Brief for Respondents, Heckler v. Chaney, 105 S. Ct. 1649 (1985); Brief for Petitioner, Heckler v. Chaney, 105 S. Ct. 1649 (1985); Amicus Brief filed by The Washington Legal Foundation, Heckler v. Chaney, 105 S. Ct. 1649 (1985).
6 In March, 1984, convicted murderer John Autry took at least ten minutes to die and throughout that time was conscious, moving about and complaining of pain. Keerdoja, supra note 1. On March 13, 1985, convicted murderer Stephen Peter Morin was subjected to forty minutes of torture while technicians unsuccessfully attempted to locate a suitable vein for the injection. He was pronounced dead eleven minutes after a successful injection. N.Y. Times, March 14, 1985, § A, at 22.
7 Supra note 5.
8 105 S. Ct. 1649 (1985).
9 21 U.S.C. §§ 331(b), 331(k), 352, 355(a) (1982).
10 Chaney v. Heckler, 718 F.2d 1174 (D.C. Cir. 1983).
11 The Supreme Court standard for cruel and unusual punishment measures unconstitutional cruelty according to “evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958).
12 21 U.S.C. §§ 331(b), 331(k), 352, 355(a), noted in Chaney, 718 F.2d at 1177.
13 21 U.S.C. § 355(a).
14 21 U.S.C. §321(p)(l).
15 Id.
16 21 U.S.C. §§ 331(b) and (k).
17 Chaney, 718 F.2d at 1178.
18 Chaney v. Schweiker (Memo Op., D.D.C. Civil Action No. 81-2265, Aug. 30, 1982).
19 Chaney, 718 F.2d at 1190.
20 37 Fed. Reg. 16503, 16504 (August 15, 1972), cited in Chancy, 718 F.2d at 1189 n.41; see infra text accompanying notes 42-43.
21 Chaney, 718 F.2d at 1181.
22 Id.
23 Id. at 1188.
24 Chaney v. Heckler, 724 F.2d 1030 (D.C. Cir. 1984).
25 Heckler v. Chaney, 105 S. Ct. 1649, 1654 (1985).
26 Id. at 1649.
27 Id. at 1654.
28
The fact that the drugs involved in this case are ultimately to be used in imposing the death penalty must not lead this Court or other courts to import profound differences of opinion over the meaning of the Eighth Amendment to the United States Constitution into the domain of administrative law.
Id. at 1659.
29 Id. at 1654.
30 5 U.S.C. §§ 701-706 (1976). Judicial review of final agency action is only precluded when “(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).
31 See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971). See also Kixmiller v. Sec, 492 F.2d 641, 645 (D.C. Cir. 1974) (“An agency’s decision to refrain from an investigation or an enforcement action is generally unreviewable.”).
32 The “committed to agency discretion by law” exception of § 701(a)(2) should be invoked only where the substantive statute leaves the courts with “no law to apply.” Chaney, 718 F.2d at 1184 (citing Citizens to Preserve Overton Park v. Volpe, at 410).
33 Chaney, 105 S. Ct. at 1658.
34 Id. at 1653 (citing 87 Fed. Reg. 16,504 (1972)).
35 Id. at 1658; see also 21 C.F.R. § 10.45(d)(2) (1984) (“[T]he Commissioner shall object to judicial review . . . if (i) [t]he matter is committed by law to the discretion of the Commissioner, e.g., a decision to recommend or not to recommend civil or criminal enforcement action.”).
36 Chaney, 105 S. Ct. at 1659.
37 Food, Drug, and Cosmetics Act, 21 U.S.C. § 336 (1982).
38 Chaney, 105 S. Ct. at 1659.
39 Id.
40 Id. at 1655.
41 Id.
42 Chaney, 718 F.2d at 1197 (Scalia, J., dissenting).
43 Batterton v. Marshall, 648 F.2d 694, 700 (D.C. Cir. 1980); see also Center for Auto Safety v. Nhtsa, 710 F.2d 842, 846 (D.C. Cir. 1980); Guardian Federal Savings and Loan v. FSLIC, 589 F.2d 658, 662, 666 (D.C. Cir. 1978).
44 Section 336 limits the FDA’s discretion to refuse to instigate enforcement action against violations of the act. 21 U.S.C. § 336. Brief for Respondents at 45,46, Heckler v. Chaney, 105 S. Ct. 1659 (1985). This section provides:
Nothing in this chapter shall be construed as requiring the Secretary to report for prosecution, or for the institution of libel or injunction proceedings, minor violations of this chapter whenever he believes that the public interest will be adequately served by a suitable written notice or warning, (emphasis added).
Congressional intent that the Secretary report all major violations for enforcement action is evidenced by Congress’ use of the word “minor” to limit the term “violations.” See Andrus v. Glover Construction Co., 446 U.S. 608, 616-17 (1980) (“[W]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.”).
45 Chaney, 718 F.2d at 1190 n.44.
46 Id.
47 See Chaney, 105 S. Ct. at 1656.
48 Id.
49 Id. at 1660 (Brennan, J., concurring).
50 See Administrative Procedure Act, 5 U.S.C. § 706(2)(a)(1976).
51 Brief for Respondents at 18e, Heckler v. Chaney, 105 S.Ct. 1649 (1985).
52 See 21 C.F.R. § 50.44 (1983); Protection of Human Subjects; Prisoners Used as Subjects in Research, 45 Fed. Reg. 36,388 (May 30, 1980) (rejecting states’ claims that FDA has no jurisdiction over drugs used on state prisoners).
53 See United States v. Beauthanasia-D. Regular, [1979 Developments] Food Drug Cosm. L. Rep. (CCH) ¶ 38,265 (D. Neb. 1979).
54 The Administrative Procedure Act provides that a reviewing court shall “hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(a).
55 Chaney, 105 S. Ct. at 1660.
56 Id.
57 Chaney, 718 F.2d at 1191.
58 See Georgetown letter, supra note 5.
59 “The American Medical Association, the British Medical Association and the professional medical societies of the states with lethal injection statutes have all passed resolutions declaring that a physician should not [participate in the process]. The American Nursing Association has taken the same position.” Georgetown letter, supra note 5, at 2.
60 Texas and Oklahoma, for example, use volunteer medical technicians to administer the injection. N.Y. Times, March 14, 1985, § A, at 22; Curran & Casscells, supra note 2, at 229.
61 Gardner, Executions and Indignities—An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St. L.J. 96, 129 (1978).
62 The Hypocratic Oath prohibits the participation of physicians in any aspect of capital punishment. Curran & Casscells, supra note 2, at 227.
63 Georgetown letter, supra note 5, at 2.
64 Id.
65 Keerdoja, supra note 1.
66 Telephone interview with Dr. Ward Casscells, Harvard Medical School, Cambridge, Massachusetts (Oct. 31, 1984).
67 Id.
68 Id.
69 N.Y. Times, March 14, 1985, § A, at 22.
70 Georgetown letter, supra note 5, at 2.
71 See generally id.
72 21 U.S.C. §§ 331(b), 331(k), 355 (1982).
73 21 U.S.C. §355.
74 Chaney v. Heckler, 105 S. Ct. 1649, 1652 (1985).
75 Id.
76 Chaney v. Heckler, 718 F.2d 1174, 1199 (1983) (Scalia, J., dissenting).
77 Food, Drug, and Cosmetics Act, 21 U.S.C. § 321(g)(1) (1982).
78 United States Pharmacopoeial Convention, U.S. Pharmacopoeia National Formulary, at 855, 1054, 1106 (1985).
79 FTC v. Liggett & Meyers Tobacco Co., 108 F. Supp. 573, 576 (S.D.N.Y. 1953).
80 Food & Drug Act of 1906, 34 Stat. 768, § 321(g)(1)(a).
81 The FDCA was first amended in 1912 by the Sherley Amendment, 37 Stat. 416, 21 U.S.C. § 10, “Drugs,” par. 3, which was enacted to define as misbranded drugs labeled with a “false and fraudulent” statement regarding their therapeutic effect. In 1913, a reference to the “Secretary of Commerce and Labor” was amended by the deletion of “and Labor,” 37 Stat. 736, 21 U.S.C. § 1, amended by 21 U.S.C. § 101 (1966). The “Net Weight” Amendment, 37 Stat. 732 (1913), 21 U.S.C. § 10, “Foods,” par. 3, revised the terms of the original provision requiring disclosure of quantity of packaged goods. This requirement of the “Net Weight” Amendment was later expanded to include wrapped meats. 41 Stat. 271 (1919), 21 U.S.C. § 321(b). The Mcnany-Mapes Amendment of 1930 authorized the Secretary of Agriculture to establish by regulation one standard of quality and of fill of container for any canned food and to prescribe a form of label for sub-standard foods, 46 Stat. 1019 (1930), 21 U.S.C. § 10, “Foods,” par. 5. Cavers, The Food, Drug and Cosmetic Act of 1938: Its Legislative History and its Substantive Provisions, 6 Law and Contemp. Probs. 2, 5 n.15 (1939).
82 Food, Drugs and Cosmetics: Hearings on S. 1944 Before the Subcomm. of Senate Comm. on Commerce, 73d Cong., 2d Sess. 15-16 (1933) (statement of Walter G. Campbell, Chief of FDA) [hereinafter Senate Hearings].
83 Numerous cases stand for the proposition that an item’s status as a “drug” under the Act depends upon whether it was marketed on the basis of alleged health promoting or therapeutic benefits. See United States v. 250 Jars of Fancy Honey, 218 F. Supp. 208 (D. Mich. 1963); United States v. 46 Cartons, Etc., 113 F. Supp. 336 (D.N.J. 1953). In 46 Cartons, the New Jersey district court held that cigarettes “which were shipped in interstate commerce with leaflets suggesting that the cigarettes were effective in preventing respiratory and other diseases,” came within the term “drug” as used in the FDCA. 113 F. Supp. at 336. The court relied on a statement from a Senate Report that “[t]he use to which a product will be put determines the category [into which it will] fall.” Id at 338 (citing S. Rep. No. 361, 74th Cong., 1st Sess. (1935)). By quoting the statement out of context, the court misconstrued the statement to mean that classification of a substance as a “drug” depends upon its being marketed for alleged health and therapeutic benefits. Rather, the statement was meant to clarify the immediately preceeding comment that the definitions of “food,” “drug” and “cosmetic” are mutually exclusive. The aforementioned statement in the Senate Report merely clarifies the fact that a product which has nutritive value but is sold for drug use only will come within the definition of “drugs” but not that of “food.”
84 H.R. 2139, 75th Cong., 3d Sess. (1938).
85 394 U.S. 784 (1969).
86 Id. at 798.
87 United States v. Rutherford, 442 U.S. 544, 551-52 (1979).
88 Brief for Respondents, supra note 51, at 83.
89 Tennessee Valley Authority v. Hill, 437 U.S. 153, 185 (1978).
90 If we accept the Chaney court of appeals categorization of the challenged substances as “drugs,” will this lead to the conclusion that all implements of capital punishment must be regulated by the FDA? The FDCA provides parallel definitions of “drugs” and “devices.” The FDA defines devices as articles “intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; or to affect the structure or any function of the body of man or other animals.” 21 U.S.C. § 321(h)(2). In the Food and Drug Act of 1906, there was no separate definition for “device,” which was subsumed within the definition of “drugs.” According to FDA Chief Campbell, “[t]he third portion of the definition of the term drugs, all substances and preparations, other than food, and all devices intended to affect the structure or any function of the body of man or other animal, is admittedly an inclusive, a wide definition.” Senate Hearings, supra note 82. The purpose in the formulation of that part of the definition was to expand FDCA protections to many products marketed as treatment for diseased conditions. However, limitations placed upon the term “drug” by definition rendered it difficult to control “fraudulent mechanical devices used for therapeutic purposes.” Report of the Chief of the Food and Drug Administration, 1933 (quoting the Report of the Chemist, 1917). With the adoption of S. 5 in 1935 (S. 5 was a bill to prohibit the movement in interstate commerce of adulterated and misbranded food, drugs, devices and cosmetics, and for other purposes), Congress brought “mechanical devices, offered for curative purposes and devices and preparations claimed to bring about changes in the structure of the body” within the scope of the Act. Hearings on S. 1944 Before a Subcomm. on Commerce, 73d Cong., 2d Sess. 12 (1933) (statement of Henry A. Wallace, Secretary of Agriculture) [hereinafter Commerce Hearings].
Apparati of capital punishment (the electric chair, gas chamber, gun) are not “devices” within the FDCA’s usage of that term because they are not marketed on the basis of therapeutic or health promoting benefits. Therefore, the classification of the challenged lethal substances as “drugs” under § 321(g)(1)(a) does not result in FDA regulation of all the implements of capital punishment. Id.
91 Chaney, 718 F.2d 1174, 1176 (citing 21 U.S.C. § 352(f)).
92 21 U.S.C. § 331(k). Section 342(f) states that a drug is misbranded:
Unless its labeling bears (1) adequate directions for use; and (2) such adequate warnings against use in those pathological conditions or by children where its use may be dangerous to health, or against unsafe dosage or methods or duration of administration or application, in such manner and form, as are necessary for the protection of users: Provided, that where any requirement of clause (1) of this subsection, as applied to any drug or device, is not necessary for the protection of the public health, the Secretary shall promulgate regulations exempting such drug or device from such requirement.
21 U.S.C. § 352(f).
93 Chaney, 718 F.2d at 1199 (Scalia, J., dissenting).
94 Id.
95 Id. at 1181.
96 United States v. Urbuteit, 335 U.S. 355, 357-58 (1948).
97 Brief for Respondents, supra note 51, at 40, n.42.
98 84 Stat. 768 (1906). Section 301 provides in part:
(a) prohibited the ‘introduction or delivery for introduction into interstate commerce’ of misbranded or adulterated drugs; (b) prohibited the misbranding or adulteration of drugs while ‘in interstate commerce;’ and (c) forbid the ‘receipt in interstate commerce of any misbranded or adulterated drug,’ and the delivery thereof for pay or otherwise.’
United States v. Sullivan, 332 U.S. 689, 696 (1948).
In 1938, Congress enacted § 301(k), which was designed to fill the gap that arises “when a drug which has already been transported in interstate commerce is misbranded by a person who neither shipped nor received the drug in interstate commerce.” United States v. Evers, 643 F.2d 1043, 1050 (5th Cir. 1981). In United States v. Sullivan, the Court recognized that the House Committee on Interstate and Foreign Commerce was motivated by a purpose to broaden the Act’s coverage to include the ultimate consumer. 332 U.S. at 689. The Committee reported:
In order to extend the protection of consumers contemplated by law to the full extent constitutionally possible, paragraph (k) has been inserted prohibiting the changing of labels so as to misbrand articles held for sale after interstate shipment.
H.R. 2139, 75th Cong., 3d Sess. 3 (1938).
99 A consumer has been conventionally defined as “[o]ne who uses [economic] goods, and so diminishes or destroys their utilities.” Webster’s New Collegiate Dictionary 179 (1953).
100 United States v. 10 Cartons, Etc., 152 F. Supp. 360, 365 (W.D. Pa. 1957).
101 United States v. Sene X Eleemosynary Corp., 479 F. Supp. 970, 981 (S.D. Fla. 1979).
102 Brief for Respondents, supra note 51, at 40, n.42.
103 Sullivan, 332 U.S. at 696.
104 De Freese v. United States, 270 F.2d 730 (5th Cir. 1959).
105 United States v. Wiesenfeld Warehouse Co., 376 U.S. 86 (1964).
106 Chaney, 718 F.2d at 1199.
107 643 F.2d 1043 (5th Cir. 1981).
108 Id. at 1050. Evers does not support a restrictive reading of the “held for sale” language in this case. The Evers court held that a physician does not violate the FDCA even when he both holds drugs for sale and advocates their unapproved use without proper instructions. The practice-of-medicine exception, which exempts physicians from liability under the FDCA, enabled Dr. Evers to prescribe an unapproved use of the drugs to his patients. Chaney is distinguishable because there is no practice-of-medicine exception for a prison warden.
109 514 F.2d 1097 (2d Cir. 1975).
110 10 Cartons, Etc., 152 F. Supp. at 364.
111 Evers, 643 F.2d at 1050.
112 Because the FDCA contains a practice-of-medicine exception, physicians cannot be held liable for violating the misbranding provisions. See supra note 108.
113 Chaney, 718 F.2d at 1200 (Scalia, J. dissenting).
114 Id. at 1182.
115 Sullivan, 332 U.S. at 697.
116 Chaney, 718 F.2d at 1182.
117 Sullivan, 332 U.S. at 696.
118 Commerce Hearings, supra note 90, at 277-78. (Statement of Senator Copeland).
119 The eighth amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII.
120 Brief for Respondents, supra note 51, at 88.
121 Chaney, 718 F.2d at 1182-83.
122 Id.
123 Id. at 1191.
124 See supra text accompanying notes 4-7.
125 Furman v. Georgia, 408 U.S. 238, 269 (1972).
126 105 S. Ct. 1649 (1985).
127 Tro p v. Dulles, 356 U.S. 86, 101 (1958).
128 See Gardner, supra note 61. In his article, Gardner recognizes the innate contradiction in a constitutional standard which professes human dignity as its purpose but permits relative cruelty. He falls short in his assessment of the present administration of capital punishment by accepting capital punishment as a “present reality.” Id. at 130. Gardner calls for scrutiny of all methods without recognizing the necessary revision of the judicial standard for cruel and unusual punishment.
129 Id. at 97.
130 Trop, 356 U.S. at 100.
131 Recent Supreme Court decisions applying an “evolving standards of decency” standard include Hudson v. Palmer, 104 S. Ct. 3194 (1984); Estelle v. Gamble, 429 U.S. 97 (1984).
132 Although in Furman the Supreme Court (Brennan, J., concurring) claimed to have rejected an “historical interpretation” of the cruel and unusual punishment clause, it merely substituted one historical test for another. In In re Kemmler, 136 U.S. 436 (1890), and Wilkerson v. Utah, 99 U.S. 130 (1878), the Court measured cruelty against the “penalties and punishments as were inflicted by the Stuarts.” Furman, 408 U.S. at 266 (i.e. extreme forms of torture). In Weems v. United States, 217 U.S. 349 (1910), the Court judged cruelty by “rely[ing] on conditions which existed when the Constitution was adopted.” Id. at 266. Today, the Court gauges cruelty according to existing methods which have passed through this historical analysis as being no more unusually cruel than past methods of torture.
133 99 U.S. 130(1878).
134 Gardner, supra note 61, at 100.
135 Id.
136 217 U.S. 349 (1910).
137 Gardner, supra note 61, at 103.
138 Id.
139 Note, The Death Penalty Cases, 56 Calif. L. Rev. 1268, 1334 (1968). See generally Glass v. Louisiana, 105 S. Ct. 2159, 2163 (1985) (Brennan, J., dissenting) (“the evidence respecting this method of killing people [electrocution] has not been tested through the adversarial truthfinding process.”); Gray v. Lucas, 463 U.S. 1237, 1239 (1983) (Burger, J., concurring) (“no evidentiary hearing on the effects of lethal gas is required.”).
140 The Court has summarily dismissed the issue of the constitutionality of existing methods of capital punishment. See Glass v. Louisiana, 105 S. Ct. 2159 (1985); Autry v. McKaskle, 104 S. Ct. 1462 (1984); Gray v. Lucas, 463 U.S. 1237 (1983). Although the Court has not articulated the “evolving standards of decency” standard in these cases, it is reasonable to assume that “evolving standards of decency” continues to guide the Court in these decisions, given that the dissenting opinions reference the standard and the Court has never rejected it.
141 136 U.S. 436(1890).
142 Gardner, supra note 61, at 100.
143 In re Kemmler, 136 U.S. at 447 (emphasis added).
144 Gardner, supra note 61, at 100.
145 In re Kemmler, 136 U.S. at 447.
146 Id. at 466.
147 Gardner, supra note 61, at 100.
148 Trop, 356 U.S. at 101.
149 Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773, 1779(1970).
150 In Gregg v. Georgia, 428 U.S. 153 (1976), the Supreme Court held that capital punishment is not necessarily cruel and unusual punishment under the eighth amendment to the United States Constitution. Prior to Gregg, “[t]he court on a number of occasions . . . ‘both assumed and asserted the constitutionality of capital punishment’“ without having directly confronted the issue. Id. at 168. The Gregg Court noted that “[i]n several cases that assumption provided a necessary foundation for the decision, as the Court was asked to decide whether a particular method of carrying out a capital sentence would be allowed to stand under the Eighth Amendment.” Id. at 168. The Gregg decision that capital punishment is not unconstitutional per se, crystallized the Court’s position.
151 Gardner, supra note 61, at 114 n.132. The fact that executions are conducted in secret prevents the public from forming an informed opinion on capital punishment.
152 Id.
153 710 F.2d 1048 (5th Cir. 1983), cert. denied, 463 U.S. 1237 (1983).
154 Id. at 1048.
155 Id. at 1058-59.
156 Id. at 1059 (quoting Rev. Myer Tobey, witness of four Maryland executions by lethal cyanide gas).
157 Id. at 1060 (quoting Dr. Richard Traystman, Director of the Anesthesiology and Critical Care Medicine Research Laboratories at Johns Hopkins Medical School).
158 Id.
159 L. Berkson, The Concept of Cruel and Unusual Punishment 21, 31 (1975).
160 Gardner, supra note 61, at 103 n.48 (citing L. Berkson at 21, 31).
161 Hudson v. Palmer, 104 S. Ct. 3194 (1984); Estelle v. Gamble, 429 U.S. 97 (1984).
162 Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishment Clause, 126 U. Pa. L. Rev. 989, 1044 (1978).
163 Id.
164 Id.
165 See supra note 6 and accompanying text.
166 See Keerdoja, supra note 1.
167 Id.
168 See In re Kemmler, 136 U.S. at 447 (“punishments are cruel when they involve torture or lingering death”),
169 Furman v. Georgia, 408 U.S. 238, 273 (Brennan, J., concurring).
170 Gardner, supra note 61, at 129.
