Limitations on Capital Punishment: Methods of Execution
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inﬂicted.
Limitations on Capital Punishment: Methods of Execution.— 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.”135 In the late 19th century and continuing into the 20th 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.”136 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.137 Today the overwhelming majority of the states that allow for the death penalty use lethal injection as the “exclusive or primary method of execution.”138
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. In fact, while the Court has broadly articulated that there are some limits to the methods that can be employed in carrying out death sentences (such as torturing someone to death),139 the Supreme Court has “never invalidated a State’s chosen procedure” for carrying out the death penalty as a violation of the Eighth Amendment.140 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.141 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.”142 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.143
The declaration in Trop that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”144 and the continued reliance on that declaration by a majority of the Court in several key Eighth Amendment cases145 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,146 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.147 A plurality opinion, written by Chief Justice Roberts and joined by Justices Kennedy and 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.148 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.149 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.150 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.151 Four other Justices, for varying reasons, concurred in the judgment of the Court.152
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.153 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.154 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.155 Ultimately, given the holdings in Baze and Glossip, and the burden those cases imposed upon the plaintiffs challenging a state’s chosen method of execution on Eighth Amendment grounds, 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, a standard that may result in the political process (as opposed the judiciary) being the primary means of making wholesale changes to a particular method of execution.
135 See State v. Frampton, 627 P. 2d 922, 934 (Wash. 1981).
136 See Malloy v. South Carolina, 237 U.S. 180, 185 (1915).
137 See Baze v. Rees, 553 U.S. 35, 42 (2008) (plurality opinion).
139 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”).
140 See Baze, 553 U.S. at 48 (plurality opinion).
141 See Wilkerson, 99 U.S. at 134–35.
142 See In re Kemmler, 136 U.S. 436, 447 (1890).
143 See Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (plurality opinion). Justice 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.
144 See Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).
145 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).
146 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 28 U.S.C. § 1983); Nelson v. Campbell, 541 U.S. 637 (2004) (same).
147 553 U.S. 35, 44 (2008).
148 Id. at 50.
149 Id. at 51.
150 Id. at 52.
151 Id. at 53–61.
152 Justice 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 Thomas, on behalf of himself and Justice 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 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).
153 See 576 U.S. ___, No. 14–7955, slip op. (2015).
154 Id. at 5–7.
155 Id. at 16–29.