Historical Evolution of Execution Methods
U.S. execution methods have changed over time. Hanging was common in the 1800s. The Supreme Court in Wilkerson v. Utah (1879) ruled it wasn't cruel and unusual.
Electrocution came next in 1890. The Court approved it in Louisiana ex rel. Francis v. Resweber (1947), even after a failed attempt.
Lethal injection arrived in 1977. Baze v. Rees (2008) defined the "constitutional" method – no "substantial" or "objectively intolerable" risk of pain.
The Court in Glossip v. Gross (2015) approved midazolam despite botched executions. A sodium thiopental shortage led to alternative drugs being used.
The Supreme Court's decisions show a high bar for what constitutes "cruel and unusual" punishment.

Legal Framework and Eighth Amendment Analysis
The Supreme Court has set peculiar standards for "cruel and unusual punishment." In Bucklew v. Precythe, Justice Gorsuch stated the Eighth Amendment doesn't promise a painless death, just not "superadded terror, pain, or disgrace."
Glossip v. Gross upheld midazolam use despite its failures. Justice Alito said prisoners must identify a less risky alternative method. Justices Breyer and Ginsburg called for a broader challenge to the death penalty itself.
Baze v. Rees introduced the "substantial" or "objectively intolerable" risk standard. The Court rejected arguments for a single-drug method, saying it wasn't proven viable compared to the state's method.
These rulings show a tendency to maintain the status quo. Petitioners must bring near-foolproof solutions to change execution methods. The Court has set a high bar for alternatives, requiring them to be:
- Feasible
- Readily implemented
- Significantly reduce pain risk

Controversies and Challenges with Lethal Injection
Drug shortages have plagued lethal injections since sodium thiopental manufacturers stopped selling for executions. States turned to alternatives like midazolam, which has proven unreliable.
Botched executions using midazolam include:
- Clayton Lockett in Oklahoma – lasted 40 minutes with visible suffering
- Joseph Wood in Arizona – gasped for nearly 2 hours before dying
States like Missouri have turned to compounding pharmacies for drugs, raising questions about quality and transparency.
Legal challenges often face dismissal. In Bucklew v. Precythe, Justice Gorsuch stated executions can be painful as long as they don't cross a "superadded" threshold of horror.
Some states have considered untested methods like nitrogen gas or creating their own drug combinations.
Dr. Joel Zivot's research on pulmonary edema suggests inmates may experience sensations similar to drowning during lethal injections. His autopsy findings showed:
- Lungs nearly twice normal weight
- Froth in airways indicating inmates were still breathing as lungs filled with fluid
- Evidence of pulmonary edema in 84% of over 200 autopsy reports reviewed
The controversies highlight a disconnect between the pursuit of "humane" executions and the realities of how lethal injection often plays out in practice.

Waiver of Eighth Amendment Rights
Can death row inmates waive Eighth Amendment protections against cruel and unusual punishment? The Supreme Court's stance is rigid.
In Stewart v. LaGrand, Walter LaGrand chose the gas chamber over lethal injection. The Court ruled he waived his right to challenge it under the Eighth Amendment by making that choice.
Gilmore v. Utah allowed Gary Gilmore to waive his right to appeal his death sentence after proving his waiver was "knowing, voluntary, and intelligent."
In Bucklew v. Precythe, the Court rejected Bucklew's proposal for nitrogen hypoxia over lethal injection, despite his rare medical condition. Justice Gorsuch stated the Eighth Amendment only guarantees avoiding superadded terror, pain, or disgrace.
Some academics argue Eighth Amendment protections can't be waived as they serve a broader societal function. Justice Marshall contended these protections shield society from barbaric state executions. Others assert capital defendants should choose how they die as an extension of dignity.
The Court maintains high standards for waivers, requiring them to be knowing, voluntary, and intelligent. This approach often results in maintaining the status quo of mechanized justice with little room for empathy.

Medical and Ethical Implications
Lethal injection's medical and ethical implications are complex. Dr. Joel Zivot and anatomist Mark Edgar's autopsy examinations revealed severe pulmonary edema in executed inmates. NPR's review of over 200 autopsies confirmed this in 84% of cases.
The first drug in lethal injection protocols, often midazolam, causes lung membranes to break down, leading to fluid buildup. Anesthesiologists like David Lubarsky argue midazolam doesn't guarantee unconsciousness, likening it to using a sleeping pill for open-heart surgery.
"The ability of the drug midazolam to produce an anesthetic state is reliably zero," says David Lubarsky. "Its use as a sole anesthetic agent in the lethal injection protocol would amount to malpractice if it were a medical application."
Lubarsky found many executed inmates had post-mortem drug levels too low for surgical anesthesia, suggesting they likely felt the effects of potassium chloride. Experts warn that even older anesthetics like sodium thiopental carried awareness risks.
Key Issues:
- Pulmonary edema causing sensation of drowning
- Inadequate anesthesia leading to awareness
- Use of paralytics masking signs of pain
- Ethical concerns over medical professionals' involvement
The ethical debate extends to whether the condemned should choose their execution method. This presents a faรงade of compassion while maintaining underlying issues.
Medical professionals present evidence of cruelty in lethal injection procedures, while others argue current protocols are adequately humane. The Supreme Court's interpretation of "humane" allows for practices that medical evidence suggests are painful, maintaining capital punishment's legal framework.
