A new test for evaluating Eighth Amendment challenges to lethal injections

An explosion of Eighth Amendment challenges to lethal injection protocols has struck the federal courts. The Supreme Court's recent decision in Hill v. McDonough,1 which empowered prisoners to bring challenges to lethal injection procedures under 42 U.S.C. para. 1983, has facilitated a flood of new lethal injection cases. In response, several courts have ordered states to alter their protocols, spurring other capital inmates to litigate such challenges. Distressingly, the courts evaluating these claims have almost no law to guide them. The last Supreme Court decision applying the Eighth Amendment to a method of execution was written in 1947; that case, Louisiana ex rel. Francis v. Resweber,2 occurred before the Eighth Amendment was applied to the states and resulted in a 4-1-4 split. Although lower courts have heard numerous challenges to execution methods, few have analyzed the constitutional validity of a method of execution in detail. Making matters worse, courts that find Eighth Amendment violations must craft equitable remedies that often amount to entirely new execution protocols. No clear precedent exists to guide courts in formulating such remedies. This Note proposes a legal standard for the administration of Eighth Amendment method-of-execution claims, focusing on lethal injection cases. Part I describes lethal injection procedures and summarizes recent litigation. Part II discusses the difficulty of evaluating lethal injection claims, analyzing both general difficulties in interpreting the Eighth Amendment and specific difficulties associated with lethal injection cases. Part III proposes a standard for addressing method-of-execution claims that attempts to balance a prisoner's interest in a painless execution with a state's interest in conducting executions efficiently. Part IV discusses remedies for unconstitutional procedures. Part V concludes.     

Understanding deliberate indifference to suicide in corrections facilities: A review of recent legal cases

The US corrections system is the largest provider of mental health care in the country. Suicide is a leading cause of death in corrections facilities with rates of inmate suicide being far higher than the national average. Suicide is an event that can lead to legal action against the facility, staff, and treating health-care providers. Some claims are based on medical malpractice. In this setting, claims may also be brought based on violations of the detainee's constitutional rights. Pretrial detainees and prisoners, alike, have a constitutional right to adequate medical and psychiatric care through the Fourteenth Amendment and Eighth Amendment, respectively. But, there is limited information on constitutional claims made against correctional health-care providers for cases of inmate suicide. To help bridge this gap, the authors conducted a search of federal legal case decisions involving claims against health-care providers for deliberate indifference to a detainee's serious illness or injury in the event of attempted suicide or death by suicide over a 5 year period from 2016 to 2021. Fifteen cases were identified. Five themes emerged from the cases, which could serve as bases for claims against health-care professionals: receiving screening, mental health assessment, treatment, documentation, and attention to facility policies. The cases and their clinical significance are summarized in this article. The materials provide an overview of the problems surrounding correctional suicides and can serve as practice pointers in the corporeal setting.     

Penal harm medicine: state tort remedies for delaying and denying health care to prisoners

In prison and jail subcultures, custodial personnel are committed to the penal harm movement, which seeks to inflict pain on prisoners. Conversely, correctional medical personnel are sworn to the Hippocratic Oath and are committed to alleviating prisoners' suffering. The Hippocratic Oath is violated when correctional medical workers adopt penal harm mandates and inflict pain on prisoners. By analyzing lawsuits filed by prisoners under state tort law, this article shows how the penal harm movement co-opts some correctional medical employees into abandoning their treatment and healing mission, thus causing denial or delay of medical treatment to prisoners. This revised version was published online in July 2006 with corrections to the Cover Date.     

法律的公众认同、功能期许与道德承载对刑法修正案(八)的复眼式解读

刑法修正案(八)不但针对我国转型时期的社会情势和国情民意予以了很大程度的回应，而且也体现了官方和主流民意对刑法的功能期待，承载了当下社会基本的集体道德情感，但被一些刑法改革者认为立法理性不够或过多地迁就了庸俗的民粹主义，以致没有较好地摆脱传统工具主义和重刑主义的思维与窠臼。诚然，转型时期高度复杂的社会情势和大众心理基质难免使得实定刑法所蕴含的价值理念互有差别、充满悖反乃至相互抵牾。欲对这种吊诡的多重面向予以同情之理解与有效的解读，除了法学与逻辑的思维论证，更重要的可能还必须导入法律社会学、社会心理学和法律经济学等多维度的复眼化视角。     

Deportation, Detention and Medical Intervention

In the UK the foreign national prisoners who have breached immigration rules suffer deprivations from which the ordinary citizens are exempt. Their subjection to prison regimes often on pain of deportation leads to psychological illnesses that cause them long term damage. The deportation regime that arises by default under the Border and Immigration Act 2007 has made it difficult to avoid prison for the breach of immigration rules. The research published by NACRO shows that it can lead to trauma because there is duress accompanied by an uncertainty of fate. The decision by the Court of Appeal in R (Medical Justice) v Secretary of State for the Home Office (2011) has brought this issue of deporting ill patients into the limelight. There are expert reports that reveal that those foreign nationals who are refused permission to stay are at risk from psychiatric illnesses when they are detained. The findings are that the mental illnesses are particularly severe in the most vulnerable prisoners who develop symptoms of long term mental disease. It is critical for the medical professionals to consider their involvement at an early stage when they will be able to supervise and diagnose illness before there is damage. This is particularly the case as the NHS treatment is denied to prisoners who are foreign nationals which is makes it necessary to implement a strategy with local agencies to prevent the onset of debilitating illnesses.     

U.S. Industries v. Director: "claim" versus "condition" in the analysis of workers' compensation cases

Under most workers' compensation statutes, an injury must "arise out of " and "in the course of" employment in order to qualify as a compensable disability. In U.S. Industries v. Director, the Supreme Court held that the Longshoremen's and Harbor Workers' Compensation Act must be strictly construed to avoid transforming the compensation system into a form of social insurance. In U.S. Industries, the Court denied a disability claim based on an arthritic condition which was manifested while the worker was at home in bed. This Note contends that the Supreme Court neglected to consider pertinent medical realities when analyzing the causation question. Thus, the decision undermines the overall rationale behind workers' compensation legislation. Nonetheless, the Note argues that the case does not relax the requirement of adequately scrutinizing the causative elements underlying any reasonable claim for disability benefits. An analysis adequately accommodating both medical and legal facts, instead of relying upon the vagaries of statutory interpretation, is necessary to improve the efficiency and fairness of workers' compensation disability determinations.     

论我国一人公司法律制度的完善

传统公司法理论以缺乏团体人格为主要理由,否认一人公司的法律地位。然而,一人公司以自身的特点赢得了投资者的关注,并被许多国家认可。一人公司已在实践中对我国《公司法》提出挑战,为了中国企业制度的科学完善,我国应从法律上对一人公司进行规制。     

Are the similarities between a woman's right to choose an abortion and the alleged right to assisted suicide really compelling?

In this Article, Marc Spindelman examines the relationship between abortion and assisted suicide. He begins his discussion with the constitutional framework within which courts should consider the assertion that the Due Process Clause of the Fourteenth Amendment protects the individual's decision to commit assisted suicide. The Author then considers and, based on relevant Supreme Court doctrine, rejects the conception of personal autonomy that undergirds the claimed constitutional right to assisted suicide. Finally, the Author points out some legal and cultural distinctions between abortion and assisted suicide, arguing that these distinctions offer courts good reasons for holding that the Fourteenth Amendment's promise of liberty does not include the liberty to commit assisted suicide. In addition, the Author makes a few observations about recent assisted-suicide cases decided by the Ninth and Second Circuits.     

Creating Legal Space for the Unborn

This article explores how the unborn moved from inhabiting an implicit mother-centric space, tacitly expressed in the Irish constitutional order, to a separate legal space created first by the Eighth Amendment and later through public discourse, judicial interpretation and failed constitutional referenda. The article opens with a brief examination of the relationship between law and space in recent scholarly works. It goes on to assess the impact of post-colonial and gender discourse in producing the first legal space in which the unborn was tacitly understood. This is followed by an exploration of how cultural and gender rhetoric gave birth to a definite legal space in which the right to life for the unborn was protected by the Constitution and the government’s subsequent attempts to solve the legal limbo by shifting the debate to the social policy space. The paper concludes by discussing the extent to which a wider, more universal space, that of human rights discourse, may have an impact on the legal space created for the unborn, by either protecting or weakening its right to life.     

The Fourteenth Amendment and symbolic legality

This article examines several key tensions in thesymbolic legality or social representation of our society's core legal values. It argues that present Fourteenth Amendment jurisprudence ignores the realities of contemporary social life and serves up ineffective due process protections as poor substitutes for genuine or meaningful equal protection remedies. By documenting the importance situation and context and verifying the limits of due process, social science data underscore the rift between social reality and equal protection rhetoric and thereby increase existing tensions in the symbolic legality.     

“I'll Make Them Shoot Me”: Accounts of Death Row Prisoners Advocating for Execution

About 11% of death‐sentenced prisoners executed in the United States hastened executions by abandoning their appeals. How do these prisoners persuade courts to allow them to abandon their appeals? Further, how do legal structures and processes organize these explanations, and what do they conceal? An analysis of Texas cases suggests that prisoners marshal explanations for their desires to hasten execution that echo prevailing cultural beliefs about punishment and the death penalty. The coherence of these accounts is amplified by a non‐adversarial, unreliable legal process. This article contributes to our understanding of legal narratives, and expands their analysis to include not only hegemonic stories and legal rules, but also the legal process that generates them.     

Addressing the Global Tragedy of Needless Pain: Rethinking the United Nations Single Convention on Narcotic Drugs

The lack of medical availability of effective pain medication is an enduring and expanding global health calamity. Despite important medical advances, pain remains severely under-treated worldwide, particularly in developing countries. This article contributes to the discussion of this global health crisis by considering international legal and institutional mechanisms to promote wider accessibility to critical narcotic drugs for pain relief.     

论行政法领域的类推适用

成文法有其自身局限,其外延与内涵均无法避免缺陷。司法实践证明,行政法上的漏洞是客观存在的,以类推适用填补漏洞有其正当性。法律保留原则并未全面排斥行政法上的类推适用,基本权利保障原则更是要求行政法上的类推适用,行政法领域的类推适用不应绝对地否定。行政法上类推适用的范围受法律保留原则的拘束,在允许类推适用范围内,行政法领域的类推适用应具备其特定条件,并应从制度上予以规范和制约,以防止其滥用。     

论保外就医期间犯新罪的侦查羁押问题

保外就医是出于人道主义考虑，对重病犯人采取的一种特殊服刑方式，其对象一般是患疾病，难以在监狱里生活，随时有生命危险或行动不便的人。保外就医服刑犯在监狱外重新犯罪，愿数罪并罚。但在法律的执行过程中，法律法规在对此类犯罪嫌疑人开展侦查和收押方面的模糊性给该类案件的处理带来一定阻力。本文结合实例，针对保外就医犯人监外服刑期间犯新罪侦查收押实践中的疑难进行分析，力求发现问题的症结，并提出相应的对策建议．     

A hypothetical neurological association between dehumanization and human rights abuses

Dehumanization is anecdotally and historically associated with reduced empathy for the pain of dehumanized individuals and groups and with psychological and legal denial of their human rights and extreme violence against them. We hypothesize that ‘empathy’ for the pain and suffering of dehumanized social groups is automatically reduced because, as the research we review suggests, an individual''s neural mechanisms of pain empathy best respond to (or produce empathy for) the pain of people whom the individual automatically or implicitly associates with her or his own species. This theory has implications for the philosophical conception of ‘human’ and of ‘legal personhood’ in human rights jurisprudence. It further has implications for First Amendment free speech jurisprudence, including the doctrine of ‘corporate personhood’ and consideration of the potential harm caused by dehumanizing hate speech. We suggest that the new, social neuroscience of empathy provides evidence that both the vagaries of the legal definition or legal fiction of ‘personhood’ and hate speech that explicitly and implicitly dehumanizes may (in their respective capacities to artificially humanize or dehumanize) manipulate the neural mechanisms of pain empathy in ways that could pose more of a true threat to human rights and rights-based democracy than previously appreciated.     

Promoting a "good death": determinants of pain-management policies in the United States

Many Americans do not experience a good death. The inadequate treatment of pain at the end of life has been associated with a lack of supportive public policies more than a lack of evidence-based clinical practices or organizational efforts. Given a widespread lack of understanding about pain policies, we examine the critical role played by state medical boards in developing pain policies and then apply event history analysis to identify the variables most critical to the formation of these policies. We develop an integrated model and evaluate the adoption of eight different types of pain policies. The analytic models incorporate fifteen years of observational data and test the impact of contextual, political, extrinsic, and institutional variables. They reveal that the presence of legal counselors on state medical boards has consistently increased the likelihood that state boards adopt policies associated with progressive pain management. Further, policy has been negatively influenced by historical activity: boards that previously adopted one pain policy have been less likely to subsequently adopt additional pain policies. This work illuminates mechanisms behind state pain-policy adoption and provides valuable information for advocates who seek to improve pain-management policy and reduce the amount of pain at the end of life.     

Conforming to the rule of law: when person and human being finally mean the same thing in Fourteenth Amendment jurisprudence

The Fourteenth Amendment was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings, including all unborn human beings. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so. Science, history and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. The legal test used to extend constitutional personhood to corporations, which are artificial "persons" under the law, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood. There can be no "rule of law" if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings. Relying on the reasoning of the Supreme Court in Brown v. Board of Education, the Supreme Court may overrule Roe v. Wade solely on the grounds of equal protection. Such a result would not return the matter of abortion to the states. The Fourteenth Amendment, properly interpreted, would thereafter prohibit abortion in every state.     

Administrative "health courts" for medical injury claims: the federal constitutional issues

Our article analyzes whether the federal government may constitutionally supplant a traditional system of common-law trials before state judges and juries with new federal institutions designed by statute for compensating victims of medical injuries. Specifically, this article examines the federal constitutional issues raised by various proposals to replace traditional medical malpractice litigation in state courts with a federal system of administrative "health courts." In doing so, we address the following constitutional issues: 1. Is there federal authority to preempt state law (the commerce clause and spending clause issues)? 2. May jurisdiction be created in non-article 3 tribunals, and may claims be decided without trial by jury (the separation of powers and Seventh Amendment issues)? 3. Would pilot programs that require some claims to be pursued in a federal administrative forum while other claimants are left to pursue traditional state tort law remedies be constitutional (the equal protection issue)? The article concludes that a federal compensation system through administrative health courts should be constitutional provided the statute is appropriately drafted and that appropriate factual findings are made concerning the benefits to patients and the public as well as to doctors and their insurers.     

Queensland general practitioners' applications of the "mature minor" principle: the role of patient age and gender

Most Australian jurisdictions do not have legislation that stipulates an age by which a minor can make their own medical treatment decisions. Instead, they rely on Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, an English common law decision that recommends individual assessments of "maturity". This study explores how medical practitioners in the State of Queensland understand and apply this legal authority when faced with a young person wishing to make a contentious medical treatment decision. Almost 200 doctors made decisions about a hypothetical patient's competence and confidentiality, and detailed their reasoning in an open-ended format. The data indicate that the vagaries of existing legal criteria allow for a range of philosophical perspectives and idiosyncratic heuristics to play a role in assessment practices, and that particular combinations of patient age and gender made these cognitive shortcuts more likely to occur. A notable proportion of such processes are not consistent with legal guidelines, and this has implications for general practitioners' vulnerability to litigation as well as young patients' treatment trajectories.