History buffs may recall King Henry VIII granted Anne Boleyn’s request for a special French executioner who would decapitate her using a sword, rather than the standard beheading method of an ax (which might take several blows before succeeding in severing the head from the neck). A swift decapitation was considered to be merciful and painless.
Of course, minimizing pain for the condemned has rarely been a concern for the state; consider the horrific execution methods used in the past, which include:
- Catherine Wheel (limbs slowly broken, left to die);
- Head Crushed;
- Hung, Strung, and Quartered;
- Impaled on Spear or Pole; and being
- Sawed in Half.
Today, here in the United States, many believe modern times have changed the state’s attitude. Even if the death penalty is allowed by the government, many people assume it will be undertaken in a merciful and painless manner. Isn’t this why we’ve evolved to using drugs today – with lethal injections serving as a peaceful and humane execution protocol?
Pain and Execution Protocols in the United States
Currently, twenty-nine (29) states in the United States provide for capital punishment and all of them have lethal injection as the preferred form of execution. Statutorily, sixteen (16) states also have alternative execution methods on the books. These alternative execution methods are:
- Electrocution (electric chair)
- Firing Squad
- Lethal Gas (gas chamber)
- Nitrogen Hypoxia / Asphyxiation.
For more detail, read information provided by the National Conference of State Legislatures in “States and Capital Punishment,” published March 24, 2020, and “Using Nitrogen Gas For Executions Is Untested And Poorly Understood. Three States Plan To Do It Anyway,” written by Lauren Gill and published by The Appeal on October 25, 2019.
Of course, each of these execution methods has been developed in an attempt to be merciful and bring upon the death of the condemned individual as painlessly as possible. Legislation has been passed to provide for new or alternative execution protocols with mercy as a statutory rationale.
However, pain in executions is a reality. And more and more, we are learning how those who are being executed with a lethal injection may be suffering extreme pain in this procedure.
How Painful is the Lethal Injection Protocol? It May be Horrific.
For many years, scientists have been warning that lethal injections are far from painless. A 2005 study opines that 90% of executed prisoners felt pain during the lethal injection execution and that 40% of these condemned may have been aware and conscious as they were dying. For more, read Motluk, Alison. “Execution by injection far from painless.” New Scientist 14 (2005).
Medical experts, based upon information discovered during autopsies of the executed by lethal injection, describe how drugs like midazolam result in a very painful death. Witnesses to some executions have eyewitness testimony of the condemned appearing to suffer during a lethal injection execution. For details, read “Ohio’s Governor Stopped An Execution Over Fears It Would Feel Like Waterboarding,” written by Liliana Segura and published by the Intercept on February 7, 2019.
Which is why in the past year, concerns over pain during a lethal injection have escalated to the point that alternative execution methods are being sought by several states. Oklahoma, Mississippi, and Alabama have passed legislation for asphyxiation using Nitrogen Hypoxia, for instance.
SCOTUS: No Guarantee of a Painless Execution in the U.S. Constitution
It may be shocking, therefore, for many to learn that pain alone does not equate to “cruel and unusual punishment” forbidden by the United States Constitution. Specifically, last year the Supreme Court of the United States (SCOTUS) ruled in Bucklew v. Precythe, 139 S. Ct. 1112, 1117 203 L. Ed. 2d 521, 587 U.S. (2019) that there is no constitutional protection against a painlful execution.
In this case, SCOTUS found that the use of pentobarbital in the lethal injection of a condemned man with a medical condition that might increase his pain during the execution did not violate the Eighth Amendment provision against cruel and unusual punishment.
[Of note: Justices Gorsuch, Roberts, Thomas, Alito, and Kavanaugh joined in the majority opinion with Thomas and Kavanaugh filing concurring opinions. Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented with Sotomayor filing a dissenting opinion.]
From Bucklew v. Precythe, 139 S. Ct. at 1117 (emphasis added):
The Eighth Amendment forbids “cruel and unusual” methods of capital punishment but does not guarantee a prisoner a painless death. See Glossip, 576 U.S., at ___, 135 S.Ct., at 2731-2732.
As originally understood, the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by “superadding” terror, pain, or disgrace. To establish that a State’s chosen method cruelly “superadds” pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason. Baze, 553 U.S. at 52, 128 S.Ct. 1520; Glossip, 576 U.S., at ___, 135 S.Ct., at 2732-2738. And Glossip left no doubt that this standard governs “all Eighth Amendment method-of-execution claims.” Id., at ___, 135 S.Ct., at 2731. Baze and Glossip recognized that the Constitution affords a “measure of deference to a State’s choice of execution procedures” and does not authorize courts to serve as “boards of inquiry charged with determining `best practices’ for executions.” Baze, 553 U.S. at 51-52, 128 S.Ct. 1520. Nor do they suggest that traditionally accepted methods of execution are necessarily rendered unconstitutional as soon as an arguably more humane method becomes available.