Writer: Lily Engel
Editor: Violet Scharf
Fall 2023
The constitutionality of the death penalty has been called into question many times throughout the United States’ history. The Eighth Amendment calls for no cruel and unusual punishment, which is at the center of the death penalty debate. There are many angles by which one could go about debating whether the death penalty is constitutional or not, but this article is going to focus on the method of execution. Currently, the primary method of execution is lethal injection - which has been upheld many times by the Supreme Court as not cruel and unusual. They reason that it is not “objectively intolerable.” It should also be mentioned that while the Supreme Court has never deemed a method of execution unconstitutional, it is customary practice to avoid other methods for fear of the case going all the way to the Supreme Court and putting a specific institution or state under the microscope. We are going to focus on whether execution by lethal injection is not “objectively intolerable” or cruel and unusual.
Let us first look at the different drugs that are used for lethal injections. States that use lethal injection use a cocktail of drugs consisting of up to three distinct kinds. Most three-drug mixtures use an anesthetic or sedative, then a paralyzer, and finally a drug that stops the heart. The anesthetic is so that, theoretically, the prisoner does not feel anything. But many states use Midazolam which only makes a prisoner drowsy or sleepy, still allowing them to feel pain. Which is why they are also given a paralyzer. States claim it is so they do not hurt themselves or any of the medical personnel. In reality, it is used so that those viewing do not need to watch all the suffering prisoners are going through in their last moments. Many studies show that using high amounts of these intravenous drugs causes pulmonary edema. They experience “drowning, asphyxiation, and terror in an overwhelming number of cases” according to the Equal Justice Initiative. In numerous cases there have been reports of groaning, struggling, gasping, choking, and coughing. Froth foams in their lungs because they are still alive as they are slowly drowned. We know all of this because of autopsies done by the Equal Justice Initiative. From 1990 to 2019, 200 executed prisoners were autopsied. 84% had evidence of pulmonary edema. Allowing 84% of the executed prisoners to die slow, painful, and altogether inhumane deaths seems both cruel and unusual. They paralyze these prisoners so as not to distraught the witnesses, which seems to go against the idea of not being “objectively intolerable.” It is considered so inhumane that the companies selling these drugs have put out numerous statements saying they do not want their drugs used for executions. In fact, many companies have stopped selling to the state because they know that they will use these drugs for lethal injections. In recent years, states have been keeping the way they obtain lethal injection drugs more secretive. In fact, in the Waren execution in Oklahoma, a report found that the state paid in cash for the drugs to make it harder to legally trace back to a specific company (Caplan). This egregious error in state ethics has caused an unofficial moratorium on executions in the state because even government officials are uncomfortable with what is happening. Considering the ethical and humane concerns surrounding the use of these drugs in lethal injections, it is evident that a reevaluation of execution methods is not only warranted but essential for upholding the principles of justice and humanity.
After reviewing the drugs that are used, let us now turn our eye to the executions that went array. According to the Death Penalty Information Center, “3% of executions have been botched since the 1900s.” That is over 300 people’s executions that have gone wrong. Many reports talk about the executions lasting hours when it is supposed to be a quick and painless process. Nurses are routinely unable to find usable veins and repeatedly poked the prisoners countless times and many journalists that have observed have called it “butchering” the prisoner (ACLU). Some prisoners even helped the medical personnel find usable veins because the process was so agonizing. Prisons have produced many excuses for not being able to find a suitable vein – it is harder to find a suitable vein in an intravenous drug user or an overweight prisoner, etc. Whatever is causing the imprecise practices of lethal injection does not change the fact that this is an agonizing process for the prisoner – which is “cruel and unusual.” There have also been many reports of the drugs not working correctly, taking hours for the prisoners to die while they groan and jerk around in pain, suffocating slowly. In other legal practices, this behavior would be considered inhumane and torturous. Why, then, is it still legally permissible to do?
While the United States Supreme Court has not abolished the death penalty, 22 states have. These states have abolished the death penalty for a variety of reasons, but the biggest one is botched executions leading to in-depth inquiries into lethal injection drugs, which leads states to declare it unconstitutional. Even if states have not gotten rid of the death penalty, many have stopped unofficially because of the questions surrounding the humaneness of what they are doing. The number of executions is declining every year as more officials realize the death penalty and lethal injection are not effective. But, as long as it is still legally permissible anywhere in the country, it is a problem for us all. If this kind of inhumane treatment is allowed in certain places in the U.S., then who is to say what else they will allow in the future? The United States Supreme Court has an obligation to our country to only utilize methods of punishment that are both tolerable and not cruel or unusual. As we can see throughout this paper, this is simply not the case with the existing system of execution being used. It is because of this we see so many states outlawing this practice. Lethal injection is inhumane and unquestionably unconstitutional.
References
Botched executions. Death Penalty Information Center. (n.d.-a).
Caplan, L. (2016, May 21). The end of the open market for Lethal-Injection Drugs. The New
Cases in brief: Furman v. Georgia with Carol Steiker. Harvard Law School. (2023, February 22)
Constitutionality of the death penalty in America. Death Penalty Information Center. (n.d.-b).
Lethal injection. Death Penalty Information Center. (2018, July 27).
Methods of execution. Death Penalty Information Center. (2023, August 28).
No Suitable Vein: ACLU. American Civil Liberties Union, 27 Feb. 2023,
Richard Glossip execution halted for a seventh time. Death Penalty Information Center. (n.d.-
Staff, F. (2022, May 31). Death penalty laws by State. Findlaw.
Urell, A. (2022, June 3). Lethal injections cause suffocation and severe pain, autopsies show.
Equal Justice Initiative. https://eji.org/news/lethal-injections-cause-suffocation-and-severe-pain-autopsies-show/
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