"When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint." (1)
On September 25, 2007, the United States Supreme Court granted certiorari in the case of Baze v. Rees to determine whether the chemicals and procedures currently used to implement lethal injection in Kentucky amount to "cruel and unusual punishment." (2) The death-row-inmate petitioners alleged that Kentucky's lethal injection protocol, which is nearly identical to all current lethal injection protocols in the United States, violates the Eighth Amendment because it risks subjecting the condemned to an excruciatingly painful death. (3) The Court rejected this claim, explaining that petitioners' evidence failed to demonstrate that Kentucky's protocol presented a constitutional violation. (4)
Prior to this decision, the Court had not directly addressed the constitutionality of a method of execution since 1878 in the case of Wilkerson v. Utah. (5) In that case, the Court upheld the constitutionality of the firing squad, noting that the Eighth Amendment prohibits "punishments of torture." (6) Since Wilkerson, while not directly addressing the appropriate legal standard for determining whether a method of execution is unconstitutional, the Court, mostly in dicta, has made reference to varying standards ranging in terms of the amount and risk of pain permitted. (7) This left lower courts with little guidance as to which standard should be applied to the many lethal injection challenges filed since the Court's rulings in Nelson v. Campbell (8) and Hill v. McDonough, (9) which "cleared the path for legal challenges to the chemicals and procedures used in lethal injections." (10) As a result, the standards adopted by these lower courts often varied significantly from one another, making the ultimate determination of "cruel and unusual" one largely dependant on jurisdiction. As would be expected, this situation created growing uncertainty as to what the controlling law actually was.
The decision in Baze was expected to quell this confusion with a singular legal standard. But although the Baze Court was forced to finally articulate such a standard, the standard that it did articulate in its sharply fractionated plurality opinion will likely do little to end the debate and cure the uncertainty surrounding modern, three-drug lethal injection.
This Comment will argue that although lethal injection in the abstract may have the potential to be the most humane method of execution, the specific chemicals and procedures currently used in its implementation are inconsistent with the foundational principles underlying the Eighth Amendment's proscription of "cruel and unusual" punishment. Part I will briefly describe the origins of capital punishment, generally and in the United States, and explain how the passage of the Eighth Amendment marked the first official step in the nation's history away from the brutal and toward the humane.
Part II will then demonstrate that this movement away from the barbaric has continued. It will trace the history of the major methods of execution used in the United States, showing that, historically, the nation's decisions to adopt certain methods while abandoning others were, and continue to be, rooted in the search for the most humane method available. Ultimately, it will show that although the Supreme Court has yet to hold any of these methods unconstitutional, the effective abandonment of the more brutal methods evinces the nation's growing intolerance of needless pain and suffering.
Part III will briefly describe the basic lethal injection procedure, explain the chemical combination currently used by the majority of death penalty states, and address the main risk associated with the tri-chemical combination. Part IV will then examine certain aspects inherent in the current implementation of three-drug lethal injection that greatly enhance this risk. Next, Part V will address the standard set forth in the Baze decision. It will briefly describe the standard, explain why it will likely do little in the way of remedying the uncertainty surrounding modern lethal injection, relate how the standard is substantively flawed, and discuss the benefits of an alternate, more appropriate standard.
Part VI, the final part, will examine modern lethal injection through the lens of this standard, demonstrating that the risks presented by the chemicals and procedures currently used cannot square with Eighth Amendment principles. It will show that in light of less risky alternatives, use of the three-drug protocol and the risk it poses are unnecessary, and then explain that despite this nation's widespread adoption of the protocol, and despite its survival since, its continued use does not comport with evolving standards of decency.
History of Death as Punishment
The use of death as punishment has a long and brutal history. The death penalty was first codified in the eighteenth century BC in the Code of Hammurabi of Babylon, and as centuries passed, it became an increasingly prevalent form of punishment for a variety of offenses. (11) The fourteenth century BC's Hittite Code, as well as the seventh century BC Draconian Code of Athens and the fifth century BC Roman Law of the Twelve Tablets, all codified the death penalty for crimes ranging from the "publication of libels and insulting songs" to "willful murder." (12) The variety of crimes punishable by death was matched only by the array of cruelly creative methods of causing the death. (13) The condemned could be stoned, beaten to death, buried alive, drowned at sea, crucified, or, most curiously in Rome, those found guilty of parricide (14) could be "submersed in water in a sack, which also contained a dog, a rooster, a viper and an ape." (15)
Britain had a similar history of capital punishment for both major and minor crimes. (16) While hanging from the gallows was the most common method of execution throughout that history, other more brutal methods were also used. (17) In the sixteenth century, under the reign of Henry VIII, common methods included drowning in drowning pits, burning at the stake, pressing, and even boiling, a process that would sometimes take up to two hours to cause death. (18) Beheading and drawing and quartering, which often included public castration and disemboweling, were also used. (19) The use of the majority of these methods continued in Britain well into the nineteenth century. (20) Burning at the stake was not repealed until 1790; disemboweling, as part of drawing and quartering, was permitted until 1814; and beheading and quartering persisted until their abolition in 1870. (21)
The use of death as punishment in the English American Colonies was similarly prevalent. (22) As would be expected, "Britain influenced America's use of the death penalty more than any other country." (23) Many brutal methods of execution were available, and, as was the procedure in Britain, the method chosen was a matter of judicial discretion. (24) Despite their availability, however, the more brutal, horrific methods were less commonly used and hanging represented the primary mode of execution. (25) Leading up to independence, the trend away from the brutal persisted, and ultimately, this preference for the humane was codified as the Eighth Amendment to the United States Constitution. (26)
The Eighth Amendment Origins: A Step Toward the Humane
In early May of 1776, the Virginia Convention, which consisted of George Mason and other Virginia delegates, assembled to discuss declaring its independence from Britain. (27) A little over a week later, the group passed two resolutions. (28) The first required that the Virginia delegates propose a declaration of independence to the Continental Congress, and the second, "that a committee be appointed to prepare a Declaration of Rights" for the State of Virginia. (29)
As part of that committee, George Mason created and proposed a bill of rights that was ultimately adopted as part of Virginia's constitution. (30) Concerned with avoiding the type of barbarity that typified British punishment, Mason included within these rights a portion of the English Bill of Rights of 1689 which stated that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (31) Following this adoption, eight other states followed suit by adding the same language to their constitutions, and the federal government similarly inserted it into the Northwest Ordinance of 1787. (32) Finally, in 1791, with the same aversion to the brutality of British punishment as Mason, the Framers adopted the identical language outlawing "cruel and unusual punishments" as the Eighth Amendment to the United States Constitution. (33) In so doing, the nation took its first step in its march away from the barbaric and toward the humane.
MARCHING ON: THE HISTORY OF METHODS OF EXECUTION IN THE UNITED STATES
The search for the "more humane" has since persisted. (34) Although much debate and controversy has surrounded the appropriateness of the use of death as punishment in the United States, one point of agreement has endured: that where the death penalty is permitted, only the most humane method of execution should be used to implement it. (35) This principle has guided the nation's search for the "ideal" means of causing death. (36)
Up until the nineteenth century, hanging was the primary method of execution in the American states. (37) The technique was preferred because, if carried out properly, it would violently snap the condemned's neck, killing him or her instantly. (38) However, because this method required a certain level of skill and experience that the hangman often did not have, executions were frequently botched. If the knot of the noose was not positioned properly, the neck of the...