Among the most important of them is the protocol that lays out the steps that must be followed when the state puts someone to death. If the protocol is sloppy or deficient, it will likely lead to problems in carrying out death sentences.
Not surprisingly, problems with execution protocols are especially likely to arise when a state adopts a new execution method.
On July 6, two inmates on Idaho’s death row filed suit in state court seeking judicial review of the process used by Bree Derrick, Director of the Idaho Department of Correction, in developing the state’s recently adopted execution protocol. Their complaint notes the absence of “reasoned explanation for the state’s new execution policies” and argues that the new execution policies “are…fatally arbitrary and capricious, pose unacceptable risks to the condemned, and prejudice substantial rights.”
Five days earlier, Idaho became the first state in the nation to make the firing squad its primary execution method. Director Derrick had approved the new version of its execution protocol covering both lethal injection and the firing squad, which became public on June 8.
The lawsuit filed by Gerald Pizzuto and Thomas Creech alleges that Derrick violated the state’s Administrative Procedure Act by failing “to provide a reasoned explanation for approving” the new protocol. The development of the protocol “[T]ook place in secret, without any input from the general public.”
In addition, the complaint notes that, “no publicly available document exists providing an explanation, reasoned or otherwise, for the document’s approval or any of the provision contained therein.” It argues that this failure prejudices the constitutional rights of the plaintiffs “to be free from cruel and unusual punishment, due process, and the equal protection of the laws.”
Moreover, it contends that they have a “right… to be executed in accordance with policies and procedures that were lawfully adopted and are not arbitrary, capricious, or an abuse of discretion.”
Because the Idaho suit does not challenge the legality of either lethal injection or the firing squad, it tees up the question of how much discretion can be left to correction officials when it comes to determining the details of executions. We know that getting those details right is crucial.
And we also know that states sometimes adopt and revise protocols to make it hard for death row inmates and their lawyers to hold them accountable when things go wrong in the execution chamber. As I noted in my book on lethal injection, while “some departments of Corrections modified their execution procedures in an attempt to make mishaps less likely…. [S]ome States choose to make it harder to identify or label any irregularity in the execution chamber as a departure from their protocols and procedures.”
“So they introduced greater ambiguity and discretion into their procedures. Doing so afforded executions more flexibility to act when something went wrong. As states hide more of their procedures…it becomes increasingly difficult to say that or when an execution goes wrong.”
In recent years, states have made their protocols less specific at certain key points in the execution process. They direct corrections officials to act “reasonably,” but provide no metric for determining what is reasonable, and they authorize officials to exercise discretion.
One example of these tendencies is found in a section of the Idaho protocol that reads as follows: “The processes described in this SOP (Standard Operating Procedures) are based on a general timeline…. The timeline is subject to change to accommodate unforeseen events.” And for lethal injection executions, it lays out “four (4) options for lethal injection methods. The option used is dependent upon the availability of execution chemicals.”
The protocol directs the medical team to “make every reasonable effort to ensure that no unnecessary pain or suffering is inflicted on the condemned person during the IV catheter insertion process.”
Such provisions, as law professor Deborah Denno observes, “are far too vague to assess adequately.”
The Idaho lawsuit identifies thirteen different aspects of the protocol that, it says, were adopted in an “arbitrary” and “capricious” manner, including such things as qualifications to serve on the firing squad, qualifications to serve on the medical team, restrictions on witness access, restrictions on attorney access, the sourcing, inspection, and testing requirements for supplies and equipment prior to the execution, the director’s certification of the method of execution, and the director’s discretion to amend any policies or procedures at will.
To take just one of them, the new Idaho protocol gives the DOC Director authority to allow deviations from its provisions. As the lawsuit rightly notes, this policy “[F]ails to consider the importance and necessity of fixed execution policies and procedures that cannot be changed at will, at any time, or for any reason at all…”
It notes that “No statute vests the director with the power to amend the policies and procedures concerning executions of death sentenced persons at will, at any time, or for any reason at all.”
More than fifty years ago, the United States Supreme Court ruled that it was unconstitutional to leave to the untrammeled discretion of a judge or a jury the decision about whether someone receives a death sentence. The Idaho lawsuit builds on other attempts to apply that principle to the development of procedures for carrying out such sentences by appealing to well-recognized principles of administrative law.
Some have been successful, others have not been.
For example, in 2007, a judge in California ruled that its Department of Corrections and Rehabilitation did not follow procedures required to promulgate regulations when it issued new execution protocols. As the Death Penalty Information Center reports, “Under state law, an agency that adopts new regulations must first publish the text, invite public comments, hold a hearing if a member of the public requests one, and submit the final draft to the Office of Administrative Law, which decides whether the proposed rule was legally authorized.”
The court found that an execution protocol “is a rule or regulation of general application” because it “implements a statewide policy on lethal injections for condemned inmates,” prescribes duties for state officials outside San Quentin, and applies to prisoners at other institutions.
A lawsuit raising similar issues at the federal level was filed in 2019, alleging violations of the federal Administrative Procedure Act. It called the feds’ new protocol “a major federal regulation” and argued that the Department of Justice had not gone through a required “notice-and-comment” period before they were adopted.
But the Supreme Court allowed the government to use the protocol in carrying out the Trump Administration’s execution spree the following year. Its refusal to intervene confirmed law professor Corinna Barrett Lain’s observation that “In the administrative law context ‘death is different’ means suspension of the rules that ordinarily apply to administrative decision-making. It means that when the state is carrying out its most solemn of duties, those subject to its reach receive not more protection, but less.”
She adds that “when the death penalty meets administrative law, administrative law norms get sullied and the death penalty loses the one comfort one might otherwise have: that when the state takes human life, it takes extra care to do it right.”
The Idaho courts now have a chance to make sure that, at least in their state, Lain’s argument will not apply. They should not let that chance pass by.
Source: verdict.justia.com, Austin Sarat, August 06, 2026. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Views expressed do not represent Amherst College.
"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde
but by the punishments that the good have inflicted."
— Oscar Wilde
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