The Supreme Court’s move to rule on using lethal injections for capital punishment is the latest legal debate in a controversy that goes back to the Founding Fathers. But one Eighth Amendment issue rarely defined by the Court is the general method of executions.
As the case of Glossip v. Gross heads to the Court for a likely date in April 2015, one state wants to bring back an older execution method as an alternative: the firing squad.
Wyoming lawmakers are considering measures to bring back firing squads if they can’t use a legally approved combination of drugs for lethal injections. (The state doesn’t currently have anyone on death row, so it could be a moot point, for now.)
Utah also has traditionally used firing squads, but it phased out the squads in the past decade, with its most recent execution in 2010. And Tennessee has a law on the books to use the electric chair if lethal-injection drugs aren't allowed because of legal problems or availability.
According to the Death Penalty Information Center, nine states have alternate execution options, including the electric chair, the gas chamber and hanging. (In comparison, 18 states and the District of Columbia have abolished executions.)
If the Supreme Court rules that the use of the first part of a three-part legal injection cocktail isn’t permissible, states committed to carrying out executions may choose for more-traditional methods already approved by the Supreme Court.
The debate over whether the death penalty is cruel and unusual dates back to the Founding Fathers. The Constitution’s Eighth Amendment states that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
In 1789, during the debate over the Bill of Rights in the First Congress, one argument was over the extent of the death penalty. Samuel Livermore of New Hampshire proposed that “it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off.”
“But are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind,” Livermore said.
The First Congress adopted a more moderate view when it proposed the Eighth Amendment for ratification in the Bill of Rights. It was also concerned about the use of harsh punishments in an arbitrary and disproportionate way.
The Supreme Court initially considered these factors as they would have applied in the Founders’ time. In 1878, the Court ruled in Wilkerson v. Utah that death by firing squad was permissible, but it agreed that old English practices of execution where prisoners were “emboweled alive, beheaded, and quartered,” publicly dissected and burned alive were unconstitutional.
Then in 1910, the Court broadened its criteria in a decision called Weems v. United States, which wasn't a capital punishment case but still dealt with cruel and unusual punishment. The Justices referenced an earlier death-sentence case, In re Kemmler from 1890, which held that the first use of the electric chair was constitutional under the 14th Amendment.
“Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution,” the Court said in Kemmler. Later, the Court ruled that it was permissible to execute a person with the electric chair, for a second time, after a first attempt failed.
However, in 1972 the Court changed direction in the case of Furman v. Georgia, when, in a very complicated ruling, a split Court decided the death penalty application in this one specific case was unconstitutional. Furman, an armed burglar, had tripped while fleeing a scene, causing his gun to discharge and kill a victim. The ambiguity in the Furman case led 35 states to pass their own death-penalty statutes.
In 1976, in a series of decisions called the Gregg cases, the Court confirmed that capital punishment was legal in the United States, but under limited circumstances. It rejected automatic sentencing to death, and said death sentences can’t be characterized by “arbitrariness and capriciousness.” The ruling led to the use by states of aggravating and mitigating circumstances in determining capital sentencing.
In later years, the Court has excluded certain classes of people from capital punishment, including the mentally handicapped and juveniles. It also eliminated rape and felony murder as capital crimes.
In 2008, the Court did rule on lethal injections, which it upheld as a legal form of capital punishment, in a case called Baze v. Rees. Again, the Justices issued several opinions, none gathering a majority of five.
The controlling opinion said that “an isolated mishap” in an execution would not violate the Eighth Amendment, because that “does not suggest cruelty” and does not indicate that the procedure used presented “a substantial risk of serious harm.”
But the Court also inferred that a state might violate the Eighth Amendment ban on cruel and unusual punishment if it continually used a flawed method when alternative procedures were available that were less painful.
“To constitute cruel and unusual punishment, an execution method must present a ‘substantial’ or ‘objectively intolerable’ risk of serious harm. A State’s refusal to adopt proffered alternative procedures may violate the Eighth Amendment only where the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain,” said Chief Justice John Roberts.
But legal scholars would need to look at the Wilkerson decision in 1878 and the Kemmler decision in 1890 for rare instances of Court rulings on execution methods in general.
Scott Bomboy is the editor in chief of the National Constitution Center.
