Death Penalty Administration: A Response to Alexandra Klein’s Nondelegating Death

By Eric Berger.

Professor Alexandra Klein’s excellent new article, Nondelegating Death, makes an important and original contribution. State method-of-execution statutes, she points out, afford very broad discretion to administrative agencies to craft and implement execution protocols. These statutes, she argues, raise questions under states’ nondelegation and separation of powers doctrines. Whereas the U.S. Supreme Court has not vindicated a federal nondelegation doctrine challenge since the mid-1930s, state courts apply the doctrine on a regular basis. Death row inmates, therefore, should consider the nondelegation doctrine when they challenge state execution protocols, and we all should keep the doctrine in mind when evaluating state execution practices. Read Berger’s full response here.