The Eighth Amendment’s Paper Tiger: Pain, Executions, and the Cruel and Unusual Punishment Clause

The Eighth Amendment prohibits “cruel and unusual punishments.” This prohibition applies to the way states carry out executions: states may impose capital punishment but may not do so in a way that is unconstitutionally cruel. Over a trilogy of cases that began with Baze v. Rees in 2008, the Court developed a test for analyzing whether a state’s proposed method of execution violated the Eighth Amendment. Under Baze/Glossip/Bucklew, a person challenging a state’s method of execution must show that the method of execution poses a severe risk of “superadded” pain and suffering that can be alleviated by a readily available alternative that would substantially reduce that risk and that a state has refused to adopt the alternative without a legitimate penological reason. Despite significant evidence about pain and suffering, the Supreme Court has never held that a state’s chosen method of execution or execution protocol violates the Eighth Amendment.

The Baze/Glossip/Bucklew test is, like many aspects of capital punishment, a contradiction. It presumably offers an objective way to determine when pain associated with executions is unconstitutional. Despite the purported centrality of pain to this test, pain is no more than a paper tiger. Setting unconstitutional pain as the Eighth Amendment standard for executions appears to offer constitutional protection to people facing executions, but it is ultimately a toothless standard. Instead, Baze/Glossip/Bucklew is a results-oriented test that evades substantive constitutional analysis and minimizes the significance of pain in favor of finality. Courts have abdicated their constitutional role by developing and applying an unworkable Eighth Amendment analysis. Even a proponent of capital punishment should recognize that there is something wrong with that.

Part II surveys judicial approaches to method-of-execution challenges from the 1800s to the present day. Part III identifies critical flaws in the Baze/Glossip/Bucklew test and its implementation to demonstrate why the test does not adequately address pain, even though pain is the primary standard courts use to determine if a method of execution violates the Eighth Amendment. Part IV addresses the justifications for this test: finality, morality, and legitimacy. These justifications undermine the constitutional significance of pain and result in an unworkable test. The application of this unworkable test reinforces state sovereignty, legitimacy of state punishment practices, and the Supreme Court’s authority by undermining constitutional values that counsel against the exercise of punishment as power. This Article concludes that recognizing the limits of the current Eighth Amendment analysis offers new opportunities to reexamine Eighth Amendment cruelty and engage further with the moral questions surrounding state punishment and killing.