Getting to Death: Are Executions Constitutional?

This Article addresses the question of when a method of executing a capital defendant amounts to cruel and unusual punishment under the Eighth Amendment. This Article contends that execution methods cases, while reaching the right result, fail to provide a sufficiently comprehensive Eighth Amendment standard for determining the constitutionality of any execution method. The Article proposes a test that better comports with the Court\u27s Eighth Amendment case law and more appropriately considers scientific determinations of excessive pain. To apply this test, the Article studies each state\u27s legislative changes in execution methods during the Twentieth Century as well as accounts of “botched” executions. The Article suggests that the two most prevalent methods of execution--lethal inject-ion and electrocution--are unconstitutional. The Article concludes that this country\u27s historic failure to question the constitutionality of execution methods has often been motivated solely by legislatures\u27 and courts\u27 desires to perpetuate the death penalty. This motivation distorts the “death is different” principle as well as any rational philosophy of punishment