Document Type

Unpublished Paper

Publication Date


Publication Title



lethal injection, First Amendment, Eighth Amendment, capital punishment, right of access


Constitutional Law | Criminal Law | Criminal Procedure | First Amendment | Law Enforcement and Corrections


The Spring and Summer of 2014 have witnessed renewed debate on the constitutionality of the death penalty after a series of high profile legal battles concerning access to lethal injection protocols and subsequent questionable executions. Due to shortages in the drugs traditionally used for the lethal injection, States have changed their lethal injection protocols to shield information from both the prisoners and the public. Citing public safety concerns, the States refuse to release information concerning the procurement of the drugs to the public. Such obstruction hinders the public’s ability to determine the cruelty of the punishment imposed and creates the potential for unconstitutional execution. Within the coming years, the Supreme Court will be faced with deciding the extent of the public’s right of access to government proceedings and that right’s effect on lethal injections.

This article does not attempt to argue for the abolition of the death penalty and accepts Chief Justice Roberts’ assertion that “[c]apital punishment is constitutional… it necessarily follows that there must be a means of carrying it out.”[1] However, the constitutionality of capital punishment is still governed by the Eighth Amendment’s prohibition of cruel and unusual punishment, which “draw[s] its meaning from evolving standards of decency that mark the progress of a maturing society.”[2] What this article argues for is increased access to the procedures of lethal injection in order to enable the public to have a true understanding of the Eighth Amendment and the constitutional boundaries of lethal injections. By denying the public access to all of the information surrounding executions, the states ensure the failure of Justice Marshall’s hypothesis that a well-informed public would reject the death penalty.[3]

The concept of the informed citizenry has its basis in the First Amendment.[4] This article will explore the use of the First Amendment as a tool in death penalty litigation. In particular, it will explore the viability of using First Amendment Right of Access jurisprudence to maneuver around states’ attempts to limit the information surrounding executions. A First Amendment claim can be helpful in two regards: 1) its success can delay the execution; and 2) it can gain information for a subsequent Eighth Amendment claim.

Part I recounts the history of capital punishment in the American justice system explaining how executions evolved from the very public events involving hangings to the secretive affairs involving lethal injection today. Part II explores the Supreme Court’s Eighth Amendment jurisprudence, with a particular focus on capital punishment. The second section also considers how the Marshall Hypothesis should guide Eighth Amendment capital punishment claims. Part III of the article focuses on the concept of the First Amendment Right of Access. The idea of a public right of access to government proceedings has its roots in the notion that a well-informed citizenry is essential for proper regulation of democratic governments. Part III moreover analyzes the way the Supreme Court has interpreted the right of access in cases concerning prison inmates. Part IV describes recent attempts by condemned prisoners to use the First Amendment Right of Access to delay their executions and gather information for potential Eighth Amendment violations.

Finally, the article concludes by arguing that condemned men and women should first bring suits based upon the First Amendment prior to any Eighth Amendment claim. Recent decisions have severely limited the use of the Eighth Amendment as a starting point for litigation because the inmates often lack the requisite information to make out a valid Eighth Amendment claim.[5] By bringing a First Amendment claim, the inmate can use the sword aspect of that Amendment to gain the information needed to win on a subsequent Eighth Amendment claim.

[1] Baze v. Rees, 553 U.S. 35, 48 (2008) .

[2] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[3] Gregg v. Georgia, 428 U.S. 153, 232 (1976) (Marshall, J., dissenting).

[4] Anthony Lewis, A Public Right to Know about Public Institutions: The First Amendment as Sword, 1980 Sup. Ct. Rev. 1, 3 (1980).

[5] In re Lombardi, 741 F.3d at 896.