In 1976, the Supreme Court reinstated the death penalty after a four year moratorium in Gregg v. Georgia. Rather than taking the opportunity to rule once and for all that capital punishment constitutes “cruel and unusual punishment” violating the Eighth Amendment, the Court instead ruled the death penalty serves two social purposes, deterrence and retribution, and “comports” with the core of the Eighth Amendment.

To satisfy issues raised four years earlier in Furman v. Georgia, which imposed the moratorium, the court in Gregg required an appellate review process to ensure objectivity in imposing the death penalty and for the sentencer to take the defendant’s character into consideration. Almost 50 years later the death penalty remains constitutional, but as more and more states stop imposing capital punishment, opposition is higher than ever.

In 1999, 38 states had the death penalty as a possible sentence. In early 2000, Governor George Ryan issues a moratorium on the death penalty in Illinois. After years of states moving to reinstate the death penalty, this action was the first in states moving away from capital punishment. Today, only 23 states can still sentence a defendant to die, though three have governor imposed moratoriums. Some states, like New York, reinstated the death penalty and outlawed it without ever executing anyone after Furman v. Georgia. While 24 states have abolished the death penalty, it remains part of federal sentencing and protected by the Supreme Court.

Rather than quibbling over the most humane way for a state to kill one of its own citizens, I argue we must use every tool to end the death penalty even if that means delaying it one execution at a time, writes Editorial Board member Mia Brett.

Despite the protection by the Supreme Court, many argue the death penalty does in fact constitute “cruel and unusual” punishment under the Eighth Amendment. This argument is based on the legal standard set forth in Trop v. Dulles that determining the cruelty of a punishment must be considered with “evolving standards of decency.” In that case, the court ruled that revoking citizenship was a punishment “more primitive than torture” based on decency standards in 1958. Therefore, even though the death penalty has been constitutional for most of United States history, our contemporary “standards of decency” should abolish the practice. 

While the Supreme Court has never ruled a state’s method of execution to be unconstitutional as constituting “cruel and unusual punishment,” it did list certain execution styles that would be considered unconstitutional in Wilkerson v. Utah in 1879. In ruling that a firing squad was an acceptable method of execution, the court wrote that drawing and quartering, disemboweling alive, beheading, public dissection, and burning alive were all “cruel and unusual” methods of execution that were unconstitutional. In Gregg v. Georgia, the court held that a punishment violates the Eighth Amendment if it involves “the unnecessary and wanton infliction of pain.” In 2002 in Hope v. Pelzer, the court ruled that the Eighth Amendment was meant to protect the “basic concept … [of] the dignity of man” and ensuring the punishment is “exercised within the limits of civilized standards.” Currently, there are five methods used to execute a prisoner in the United States. Lethal injection is most commonly used, and is legal in every state with the death penalty, but the electric chair, lethal gas, hanging, and the firing squad are all on the books in at least three states. 

Lethal injection has become the common method under the assumption that it is the most humane and least painful way for the state to execute someone. Most states that use lethal injection employ a three drug cocktail including a barbiturate that acts as a sedative and painkiller, a neuromuscular blocking drug, which arrests nearly all of the body’s muscles, and a lethal dose of potassium chloride to stop the heart.

Despite claims of humanity, this method seems to be a sanitized medicalized version of execution while likely causing a lot of pain. The drug often used as a sedative, sodium thiopental, is short-acting and can wear off before all the drugs are administered. This is particularly problematic because potassium chloride is very painful if a person isn’t fully sedated. Additionally, once a neuromuscular blocking drug is administered, it’s impossible for a person to cry out or express pain to alert anyone to the problem. This argument was made in Baze v. Rees in 2008, but the court upheld the constitutionality of lethal injection in a 7-2 opinion. In Glossip v. Gross, it went one step further in not only confirming the constitutionality of lethal injection, but writing in a 5-4 opinion that an inmate cannot challenge a method of execution without a viable alternative. 

Many states have slowed their executions due to a lack of access to lethal injection drugs, but after 10 years without an execution, South Carolina has responded to this obstacle by passing a new law that will require death row inmates to choose between the electric chair and a firing squad if lethal injection drugs are unavailable. While seemingly a bizarre backwards decision, the new law is supported by statements made by Justice Sotomayor in a 2017 case upholding lethal injection. In Arthur v. Dunn in 2017, Justice Sotomayor argued that, “In addition to being near instant, death by shooting may also be comparatively painless. […] And historically, the firing squad has yielded significantly fewer botched executions.”

While lethal injection has been upheld as recently as 2019 in Bucklew v. Precythe, the constitutionality of the firing squad and the electric chair go back to 1879 and 1890, respectively, and has not been revisited since. Many anti-death penalty advocates agree with Justice Sotomayor’s view of the firing squad and argue that lethal injection gives a false sense of medicalization and painlessness to a barbaric practice.

This might be the only time I say this, but I have to disagree with this view and Justice Sotomayor. Rather than quibbling over the most humane way for a state to kill one of its own citizens, I argue we must use every tool we have to end the death penalty even if that means delaying it one execution at a time. Lethal injection, like every other possible method of execution, is cruel and inhumane. They all will cause pain, they all will carry the possibility of mistakes, and they all force people to be executioners which often causes trauma to the people carrying out executions.

When we make an argument that the firing squad is more humane than lethal injection, we are supporting an alternative execution option. The lack of access to lethal injection drugs, and in some states the inability to find a doctor to perform the execution, has greatly slowed the number of executions carried out per year. South Carolina had not had an execution in 10 years due to problems with lethal injection as a method. Why would we make an argument that allows them to kill people by firing squad when they could be forced instead to let people live out their lives in prison without a viable method of execution?

—Mia Brett

---

Mia Brett, PhD, is a legal historian who writes about the construction of race and gender in American history. She lives with her dog Tchotchke. You can find her tweeting @queenmab87.

Published in cooperation with Alternet.