Execution Methods

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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Throughout the history of the United States, various methods of execution have been deployed by the states in carrying out the death penalty. In the early history of the Nation, hanging was the “nearly universal form of execution.” 1 In the late nineteenth century and continuing into the twentieth century, the states began adopting electrocution as a substitute for hanging based on the “well-grounded belief that electrocution is less painful and more humane than hanging.” 2 And by the late 1970s, following Gregg, states began adopting statutes allowing for execution by lethal injection, perceiving lethal injection to be a more humane alternative to electrocution or other popular pre-Gregg means of carrying out the death penalty, such as firing squads or gas chambers.3 Today the overwhelming majority of the states that allow for the death penalty use lethal injection as the “exclusive or primary method of execution.” 4

Despite a national evolution over the past two hundred years with respect to the methods deployed in carrying out the death penalty, the choice to adopt arguably more humane means of capital punishment has not been the direct result of a decision from the Supreme Court. Citing public understandings from the time of the Framing, the Court has articulated some limits to the methods that can be employed in carrying out death sentences, such as those that “superadd” terror, pain, or disgrace to the penalty of death,5 for example by torturing someone to death.6

Nonetheless, the Supreme Court has “never invalidated a State’s chosen procedure” for carrying out the death penalty as a violation of the Eighth Amendment.7 In 1878, the Court, relying on a long history of using firing squads in carrying out executions in military tribunals, held that the “punishment of shooting as a mode of executing the death penalty” did not constitute a cruel and unusual punishment.8 Twelve years later, the Court upheld the use of the newly created electric chair, deferring to the judgment of the New York state legislature and finding that it was “plainly right” that electrocution was not “inhuman and barbarous.” 9 Fifty-seven years later, a plurality of the Court concluded that it would not be “cruel and unusual” to execute a prisoner whose first execution failed due to a mechanical malfunction, as an “unforeseeable accident” did not amount to the “wanton infliction of pain” barred by the Eighth Amendment.10

The declaration in Trop v. Dulles that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” 11 and the continued reliance on that declaration by a majority of the Court in several key Eighth Amendment cases12 set the stage for potential “method of execution” challenges to the newest mode for the death penalty: lethal injection. Following several decisions clarifying the proper procedural mechanism to raise challenges to methods of execution,13 the Court, in Baze v. Rees, rejected a method of execution challenge to Kentucky’s lethal injection protocol, a three-drug protocol consisting of (1) an anesthetic that would render a prisoner unconscious; (2) a muscle relaxant; and (3) an agent that would induce cardiac arrest.14 A plurality opinion, written by Chief Justice John Roberts and joined by Justices Anthony Kennedy and Samuel Alito, concluded that to constitute cruel and unusual punishment, a particular method for carrying out the death penalty must present a “substantial” or “objectively intolerable” risk of harm.15 In so concluding, the plurality opinion rejected the view that a prisoner could succeed on an Eighth Amendment method of execution challenge by merely demonstrating that a “marginally” safer alternative existed, because such a standard would “embroil” the courts in ongoing scientific inquiries and force courts to second guess the informed choices of state legislatures respecting capital punishment.16 As a result, the plurality reasoned that to address a “substantial risk of serious harm” effectively, the prisoner must propose an alternative method of execution that is feasible, can be readily implemented, and can significantly reduce a substantial risk of severe pain.17 Given the “heavy burden” that the plurality placed on those pursuing an Eighth Amendment method of execution claim, the plurality upheld Kentucky’s protocol in light of (1) the consensus of state lethal injection procedures; (2) the safeguards Kentucky put in place to protect against any risks of harm; and (3) the lack of any feasible, safer alternative to the three-drug protocol.18 Four other Justices, for varying reasons, concurred in the judgment of the Court.19

Seven years later, in a seeming reprise of the Baze litigation, a majority of the Court in Glossip v. Gross formally adopted the Baze plurality’s reasoning with respect to Eighth Amendment claims involving methods of execution, resulting in the rejection of a challenge to Oklahoma’s three-drug lethal injection protocol.20 Following Baze, anti-death penalty advocates successfully persuaded pharmaceutical companies to stop providing states with the anesthetic that constituted the first of the three drugs used in the protocol challenged in the 2008 case, resulting in several states, including Oklahoma, substituting a sedative called midazolam in the protocol.21 In Glossip, the Court held that Oklahoma’s use of midazolam in its execution protocol did not violate the Eighth Amendment, because the challengers had failed to present a known and available alternative to midazolam and did not adequately demonstrate that the drug was ineffective in rendering a prisoner insensate to pain.22

Four years after Glossip, the Court further clarified its method-of-execution jurisprudence in Bucklew v. Precythe.23 In that case, a death row inmate challenged the State of Missouri’s use of the drug pentobarbital in executions because, regardless of its effect on other inmates, the drug would result in him experiencing “severe pain” due to his “unusual medical condition.” 24 The Court, in an opinion by Justice Neil Gorsuch, began by framing the Baze-Glossip test as fundamentally asking whether a state’s chosen method of execution is one that “cruelly superadds pain to the death sentence” relative to an alternative method of execution.25 With this framework in mind, the Court first rejected the petitioner’s argument that Baze and Glossip, which involved facial challenges, did not govern his as-applied challenge.26 Justice Neil Gorsuch reasoned that determining whether the state is cruelly “superadding” pain to a punishment necessarily requires comparing that method with a viable alternative, an inquiry that simply does not hinge on whether a death row inmate’s challenge rests on facts unique to his particular medical condition.27 In so concluding, the Court clarified that an inmate seeking to identify an alternative method of execution is not limited to choosing a method that the state currently authorizes and can instead point, for example, to a well-established protocol in another state.28

Applying the Baze-Glossip framework, the Court then rejected the petitioner’s proposed alternative of using the lethal gas, nitrogen hypoxia, because (1) the proposal was insufficiently detailed to permit a finding that the state could carry out the execution easily and quickly;29 (2) the proposed alternative was an “untried and untested” method of execution;30 and (3) the underlying record showed that any risks created by pentobarbital and mitigated by nitrogen hypoxia were speculative in nature.31

As a result of Baze, Glossip, and Bucklew, it appears that only those modes of the death penalty that demonstrably result in substantial risks of harm for the prisoner relative to viable alternatives can be challenged as unconstitutional.32 This standard appears to result in the political process (as opposed to the judicial process) being the primary means of making wholesale changes to a particular method of execution.33

1: Baze v. Rees, 553 U.S. 35, 41 (2008) (quoting Campbell v. Wood, 511 U.S. 1119, 1119 (1994) (Blackmun, J., dissenting from the denial of certiorari)).
2: See Malloy v. South Carolina, 237 U.S. 180, 185 (1915).
3: See Baze, 553 U.S. at 42.
4: Id.
5: See Bucklew v. Precythe, No. 17–8151, slip op. at 9–10 (U.S. Apr. 1, 2019) (citing 4 W. Blackstone, Commentaries on the Laws of England 370 (1769)).
6: See Wilkerson v. Utah, 99 U.S. 130, 135–36 (1879) (noting in dicta that certain forms of torture, such as drawing and quartering, disemboweling alive, beheading, public dissection, and burning alive, are “forbidden by . . . [the] Constitution” ); see also Bucklew, slip op. at 9–10 (similar).
7: See Baze, 553 U.S. at 48 (plurality opinion).
8: See Wilkerson, 99 U.S. at 134–35.
9: See In re Kemmler, 136 U.S. 436, 447 (1890).
10: See Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (plurality opinion). Justice Felix Frankfurter concurred in judgment, providing the fifth vote for the Court’s judgment. Id. at 466 (Frankfurter, J., concurring). He grounded his decision on whether the Eighth Amendment had been incorporated against the states through the Fourteenth Amendment, ultimately concluding that Louisiana’s choice of execution cannot be said to be “repugnant to the conscience of mankind.” Id. at 471.
11: See Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).
12: See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 419 (2008); Hudson v. McMillian, 503 U.S. 1, 8 (1992); Rhodes v. Chapman, 452 U.S. 337, 346 (1981); Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion).
13: See, e.g., Hill v. McDonough, 547 U.S. 573 (2006) (ruling that a challenge to the constitutionality of an execution method could be brought as a civil rights claim under 42 U.S.C. § 1983, rather than under the anti-delay provisions governing a habeas corpus petition).
14: 553 U.S. 35, 44 (2008).
15: Id. at 50.
16: Id. at 51.
17: Id. at 52.
18: Id. at 53–61.
19: Justice John Paul Stevens, while announcing his skepticism regarding the constitutionality of the death penalty as a whole, concluded that, based on existing precedent, the petitioners’ evidence failed to prove a violation of the Eighth Amendment. Id. at 71–87 (Stevens, J., concurring). Justice Clarence Thomas, on behalf of himself and Justice Antonin Scalia, rejected the idea that the Court had the capacity to adjudicate claims involving methods of execution properly and instead argued that an execution method violates the Eighth Amendment only if it is deliberately designed to inflict pain. Id. at 94–107 (Thomas, J., concurring). Justice Stephen Breyer concluded that insufficient evidence in either the record or in available medical literature demonstrated that Kentucky’s lethal injection method created significant risk of unnecessary suffering. Id. at 107–13 (Breyer, J., concurring).
20: See 576 U.S. 863 (2015).
21: Id. at 869–71.
22: Id. at 881–93.
23: 139 S. Ct. 1112 (2019).
24: Id. at 1120. Specifically, the petitioner argued that the state’s protocol would cause him severe pain because he suffered from a disease that causes vascular tumors, which could rupture upon being injected with the drug that Missouri used in its death penalty protocol. Id.
25: Id. at 1125 (observing that Baze and Glossip “teach[ ]” that a prisoner must show a “feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.” ).
26: Id. at 1126.
27: Id. (concluding that the argument that the Constitution categorically forbids some particular methods of execution was foreclosed by Baze and Glossip, as well as the “original and historical understanding” of the Eighth Amendment, which rejected ancient and barbaric methods of execution only because, in comparison to alternatives available at the Founding, they went far beyond what was necessary to carry out a death sentence). In so concluding, the Court rejected the argument that the comparator in an as-applied challenge should be a typical execution. Id. at 1127. For the Court, this argument rested on the assumption that executions must be carried out painlessly, a standard the Court “has rejected time and time again.” Id. Instead, to determine whether the state is cruelly “superadding” pain, Bucklew concluded that a death row inmate must show that the state had some other “feasible and readily available method” to carry out the execution that would have “significantly reduced a substantial risk of pain.” Id. Justice Neil Gorsuch also saw other problems with the petitioner’s distinction between an as-applied challenge and a facial challenge. Viewing this distinction as simply a question of the breadth of the remedy afforded the petitioner, the Court concluded that the meaning of the Constitution should not hinge on the particular remedy being sought. Id. at 1128. Moreover, the Court raised the concern that creating a distinction based on the nature of the petitioner’s preferred remedy would result in “pleading games” over the labels a petitioner assigned to his complaint. Id.
28: Id. at 1128.
29: Id. at 1129.
30: Id. at 1130.
31: Id. at 1131–33 (noting (1) evidence in the record that the state was making accommodations to further reduce any risks to the petitioner and (2) insufficient evidence indicating that pentobarbital would create risks of severe pain and that nitrogen hypoxia would not carry the same risks).
32: Id. at 1130.
33: Id. at 1134 ( “Under our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve. The proper role of courts is to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously.” ); see also Barr v. Lee, 140 S. Ct. 2590, 2590–94 (2020) (per curiam) (relying on Bucklew's views on the proper role of the judiciary with respect to method-of-execution challenges to reject a challenge raised “hours before” execution concerning the safety of using pentobarbital to carry out the death penalty).