Cruel and Unusual: Capital Punishment’s Increasing Unconstitutionality

Sophie Nerine, May 23, 2024

“Alabama has done it, and now so can you,” boasted Alabama Attorney General Steve Marshall [1]. Marshall was referring to nitrogen hypoxia, a new method of carrying out the death penalty, first used by the state of Alabama this past January. Yet, was this new method as effective as Marshall implies? 


On January 25th, 2024, Kenneth Smith, 58, was executed using nitrogen gas. A mask was placed around his face through which nitrogen gas flowed for 15 minutes [2]. Within two minutes, Smith was violently shaking, thrashing, and writhing [3]. Since it is inhumane and unethical, this form of capital punishment blatantly violates the Eighth Amendment’s ban on “cruel and unusual punishments.” Nitrogen hypoxia and the more common execution method of lethal injection have led to brutally botched executions, yet are still used in the 27 states where the death penalty is legal [4]. The death penalty’s current iteration is ineffective and subjects its victims to unnecessary suffering, violating the Constitution.


The death penalty has faced a rocky road to where it stands todaylegal in 27 states and the federal government [5]. In Furman v. Georgia (1972), the Supreme Court ruled that the practice of the death penalty at the time “constitute[d] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” In the next few years, five states, including Georgia, put in place new capital punishment statutes that created higher barriers to sentencing the death penalty [6]. The Supreme Court ruled in 1976 that the new statutes created “objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death,” effectively overturning the ban on the death penalty put in place by Furman [7]. 


Since the 1970s, the US has largely shifted from the botched electrocutions that were occurring at the time to lethal injections: a method intended to be cleaner, and less uncomfortable for witnesses [8]. The question persists: does this method satisfy the Eighth Amendment’s ban on cruel and unusual punishments? A common execution method, used by around two dozen states and the US government, is the three-drug cocktail [9]. A euphemistic name for a morbid reality, the cocktail entails first administering a barbiturate (often sodium thiopental), intended to sedate and prevent pain, followed by a muscle relaxant, and, lastly, potassium chlorideto stop the heart. It is not guaranteed that every step works in the manner it is intended to and that the victim feels no pain. Onlookers have no way of knowing whether the painkillers wear off after the muscle relaxant is administered because, at that point, the victim can no longer move or speak, and is forced to suffer the potentially excruciating pain of potassium chloride in silence [10]. 


In addition to the “silent agony” issue, sourcing these drugs can also prove challenging. In 2010, Hospira, the company that supplied sodium thiopental for executions in the US, stopped production of the drug. The company tried to move manufacturing to Italy, but the country refused to allow the production of a drug used in capital punishment, which is illegal there. State correctional departments started importing the drug from a pharmacist in London; but in 2011, the UK made it illegal to export drugs that would be used in executions [11], as the death penalty has been illegal in the UK since 1965 [12]. 


Pentobarbital, an alternative to the three-drug cocktail, has also faced sourcing issues. The drug, intended to function like a barbiturate overdose and shut down the central nervous system, is no longer supplied to the US for executions by one of its primary manufacturers, Lundbeck, a European company. State executioners in places like Texas have turned to more local and less-regulated sources of pentobarbital, opening up opportunities for contamination [13]. In 2018, roughly half of the inmates put to death in Texas using supposedly “painless” pentobarbital, reported feeling that the drug was “burning” as it passed through their bodies [14].


More evidence of suffering is found postmortem in victims of lethal injection. Pathologists examining the bodies of executed inmates uncovered a mix of plasma, blood, and other fluids in their lungs. This finding indicated that the inmates suffered from pulmonary edema, which can create a sensation of drowning or suffocation. Evidence suggested that the edema was caused by the first drug administered in the three-drug cocktail. This did not occur in just a few isolated casesof 200 lethal injections investigated, 84 percent show evidence of pulmonary edema, including those in which pentobarbital and sodium thiopental have been used [15]. This provides significant evidence that lethal injections are not painless even when they appear to be and that “silent agony” is far more common in legal execution than accounted for.


In Alabama, state and witness narratives on the safety and efficacy of nitrogen hypoxia are at odds. The Attorney General, Steve Marshall, says the execution of Kenneth Smith went as planned, encouraging other states to follow Alabama’s lead, while a reporter who witnessed the execution recalls Smith “thrashing against the straps” and gasping for air. Deborah Demo, an expert on execution methods, called Smith’s execution “appalling” [16]. However, it seems more than likely that nitrogen gas will continue to be used in executions. Alabama currently holds 43 other prisoners on death row who have opted for nitrogen hypoxia over lethal injection and two other states, Oklahoma and Mississippi, have authorized the method as well [17]. 


In 2024, the death penalty remains legal in the United States. In California alone, where executions have been paused by Governor Gavin Newsom [18], 665 inmates are on death row, awaiting a tenuous fate [19]. If Newsom’s successor chooses to reinstate capital punishment, these 665 could face brutal executions. Neither nitrogen hypoxia nor lethal injection guarantees a painless death. 

Not only is the death penalty unethical, it is unconstitutional. Death by pentobarbital, potassium chloride, or nitrogen gas can be incredibly cruel, and, by its very nature–the compounding of multiple drugs, the experimental nature of new forms of lethal injection like nitrogen hypoxia–is unusual. Individual states and the federal government have tried a variety of execution methods in modern history which have invariably failed in some way. If execution methods are not painless (and, thus, in compliance with the Eighth Amendment), why is the death penalty still legal? It begs the question: why is the best way to murder inmates even a discussion? Civil Rights Attorney Ryan Kiesel said: “Perhaps instead of trying to move to more and more palatable ways of killing someone, if a state wants to have a death penalty, they should have a method that reflects the violent act that execution is. If we can’t stomach it, we shouldn’t do it” [20]. The death penalty, in general, and its forms are unjust, unconstitutional, and should be abolished.


[1] Bogel-Burroughs, Nicholas, Shaila Dewan, and Anna Betts. “‘Textbook’ Execution or Botched One? Alabama Case Leaves Sides Divided.” The New York Times, January 26th, 2024.

[2] Bogel-Burroughs, Dewan & Betts, “‘Textbook’ Execution or Botched One?”

[3] Chandler, Kim. “What Happened at the Nation’s First Nitrogen Gas Execution: An AP Eyewitness Account.” AP News, January 28th, 2024.

[4] “Authorized Methods by State.” Death Penalty Information Center.

[5] “State by State.” Death Penalty Information Center.

[6] Robinson, Rob. “The Death Penalty Returns: Gregg v. Georgia.” Civil Liberties Cases and Materials, August 3rd, 2021.

[7] “The Case against the Death Penalty.” American Civil Liberties Union, December 11th, 2012.

[8] Siegelbaum, Debbie. “America’s ‘inexorably’ Botched Executions.” BBC News, July 31st, 2014.

[9] “State-by-State Execution Protocols.” Death Penalty Information Center.

[10] Neilson, Susie. “Lethal Injection Drugs’ Efficacy and Availability for Federal Executions.” NPR, July 26th, 2019.

[11] Meisel, Anna & Melanie Stewart-Smith. “Death Row: The Secret Hunt for Lethal Drugs Used in US Executions.” BBC News, October 21st, 2023.

[12] “The Abolition of the Death Penalty in the United Kingdom.” The Death Penalty Project, December 6th, 2021.

[13] Meisel & Stewart-Smith, “Death Row.”

[14] McDaniel, Chris. “Inmates Said the Drug Burned as They Died. This Is How Texas Gets Its Execution Drugs.” BuzzFeed News, November 28th, 2018.

[15] Caldwell, Noah, Ailsa Chang, and Jolie Myers. “Gasping for Air: Autopsies Reveal Troubling Effects of Lethal Injection.” NPR, September 21st, 2020.

[16] Chandler, Kim and Sean Murphy. “Will Other States Replicate Alabama’s Nitrogen Execution?” AP News, January 27th, 2024.

[17] Bogel-Burroughs, Dewan & Betts, “‘Textbook’ Execution or Botched One?”

[18] “Authorized Methods by State.”

[19] “Death Row Overview.” Death Penalty Information Center, September 12, 2021.

[20] Chandler & Murphy, “Will Other States Replicate Alabama’s Nitrogen Execution?”