Amendment 8 — Execution Methods

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Eighth Amendment :

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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn1amd8 " 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)). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn2amd8 " See Malloy v. South Carolina, 237 U.S. 180, 185 (1915). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn3amd8 " See Baze, 553 U.S. at 42. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn4amd8 " Id. ")

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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn5amd8 " 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)). ") for example by torturing someone to death.[6](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn6amd8 " 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). ")

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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn7amd8 " See Baze, 553 U.S. at 48 (plurality opinion). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn8amd8 " See Wilkerson, 99 U.S. at 134–35. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn9amd8 " See In re Kemmler, 136 U.S. 436, 447 (1890). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn10amd8 " 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. ")

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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn11amd8 " See Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). ") and the continued reliance on that declaration by a majority of the Court in several key Eighth Amendment cases[12](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn12amd8 " 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). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn13amd8 " 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). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn14amd8 " 553 U.S. 35, 44 (2008). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn15amd8 " Id. at 50. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn16amd8 " Id. at 51. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn17amd8 " Id. at 52. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn18amd8 " Id. at 53–61. ") Four other Justices, for varying reasons, concurred in the judgment of the Court.[19](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn19amd8 " 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). ")

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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn20amd8 " See 576 U.S. 863 (2015). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-8/execution-methods#fn21amd8 " Id. at 869–71. ") In Glo