University of Detroit Mercy Law Review
Capital punishment is one of the most significant intrusions into a person's bodily autonomy; the state takes a person's life. Even though the state has stripped a person on death row of much of their autonomy and intends to kill them, removing all autonomy, a person sentenced to death may, in some circumstances, choose how they will die. While most states rely on a single method of execution, some states permit a condemned person to choose among two or more methods of execution. Constitutional challenges to methods of execution requires the challenger to demonstrate a substantial risk of severe pain that can be alleviated by an alternative method of execution.
This Article explores the contradictions of bodily autonomy in executions. Choosing among methods of execution is an illusory exercise of bodily autonomy. No matter the method, it is still a choice among deaths, conflicting with the crucial bodily autonomy interest of living. Statutes or precedent that permit a choice among methods of execution produce an illusion of autonomy, but ultimately serve state interests and strengthen the institution of capital punishment. Yet sometimes a choice among methods of execution or a choice about how a person dies reflect genuine exercises of bodily autonomy interests, such as avoiding pain, dignity, preserving bodily integrity, or sending expressive messages. These actions deserve recognition as exercises of bodily autonomy that may temporarily break through the grant of illusory autonomy. This Article identifies exercises of bodily autonomy in executions and analyzes some of the ways legislatures, courts, and corrections agencies render these choices illusory.
Alexandra L. Klein, "Only to Have a Say in the Way He Dies:" Bodily Autonomy and Methods of Execution, 99 U. Det. Mercy L. Rev. 323 (2022).