Delaware Death Penalty Constitutional

The federal Third Circuit Court of Appeals recently upheld the constitutionality of Delaware's death penalty. The appeal had delayed executions for more than three years. The issue focused on the administration of lethal injection.

It has been nearly two years since the U.S. Supreme Court in Baze v. Rees, 553 U.S. 35 (2008) held that lethal injection did not violate the Eight Amendment prohibition against cruel and unusual punishment. The three drug cocktail that anesthetizes, paralyzes and ultimately stops the heart (used at that time by every state with the death penalty) provided sufficient safeguards for offenders facing execution.

Last year, the botched execution of Romell Broom resulted in Ohio being the first state to deviate from the three drug protocol and administer a single drug, a lethal anesthetic, during execution. Ohio has carried out two single-drug executions without incident

In 2005, concerns were raised in Delaware after the prolonged execution, by lethal injection, of Brian Steckel. As a result of those concerns condemned killer Robert W. Jackson, III and Delaware's 17 other death row inmates objected to the state's lethal injection procedure. According to the News Journal attorneys for Delaware's condemned inmates detailed problems during executions, including inadequate qualifications and training of execution team members, improper dosages of the lethal injection drugs and odd procedures such as the execution team mixing drugs in the dark. These collective errors made Delaware's death penalty unconstitutional.

The Third Circuit Court did not buy their argument. In an opinion written by former Pennsylvania attorney general, Judge D. Michael Fisher, the court held that Delaware's lethal injection protocol was constitutional. However, Judge Fisher raised some concerns. Judge Fisher wrote,"The record before us reflects an occasional blitheness on Delaware's part that, while perhaps not unconstitutional, gives us great pause. We remind Delaware not only of its constitutional obligation ... but also of its moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands."

Delaware Attorney General Beau Biden expects to begin scheduling executions, although the 18 condemned offenders will undoubtedly seek review by the U.S. Supreme Court.