In May 2014, National Constitution Center constitutional literacy adviser Lyle Denniston looked at the Supreme Court’s history with rulings about how states conduct executions of prisoners. In light of Wednesday’s botched execution in Arizona, we are re-publishing Lyle’s Constitution Check analysis.

From May 1, 2014

The Eighth Amendment bans the use of a form of punishment in a criminal case if it is “cruel and unusual,” but it does not define the phrase. When a state decides to put to death an individual convicted of murder (the only crime, other than treason, for which capital punishment is now allowed in America), it has quite wide discretion to choose the method. The Supreme Court has long been reluctant to second-guess the choices that states have made.

Only three times in its history has the court ruled on an Eighth Amendment challenge to a method of execution, and each time it ruled for the state, rejecting the challenge. In 1879, it upheld hanging; in 1890, it upheld the electric chair, and in 2008, it upheld the use of a combination of lethal drugs.

Most often, the lethal drug method (now the most widely used approach) has involved a three-drug protocol – one to render the inmate unconscious, a second to bring on paralysis, and a third to cause the death, stopping the heart. It is commonly understood that this combination, if pain is not masked, can cause agonized suffering.

The court has ruled just once on a botched execution: in 1947, it decided that it would not violate the Eighth Amendment if, after failing in the first attempt to electrocute a Louisiana man because of a mechanical malfunction, the state prepared to try again.

The court said in that case that “the traditional humanity of modern Anglo-American law forbids infliction of unnecessary pain in the execution of the death sentence,” but it also added that it was only forbidding “wanton infliction of pain.” That basically means that officials act unconstitutionally if they execute an individual in a way that intentionally makes it very painful, or in a way that shows they did not care whether it actually was.

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That has mostly continued to set the outer limit on how the death penalty can be carried out, because the court since then has not been able to gather an actual majority to define the limit more precisely.

When states began turning to the lethal drug approach, the main reason they did so was to bring about a painless death, or at least to keep the pain to a minimum. When the Supreme Court ruled on this method in its 2008 decision (Baze v. Rees), the Justices issued several opinions, none gathering a majority of five.

What turned out to be the controlling opinion, because it wound up in a middle position between blocs of Justices who would have ruled more broadly and in opposite directions, had the full support of only three Justices.

That opinion said that “an isolated mishap” in an execution would not violate the Eighth Amendment, because that “does not suggest cruelty” and does not indicate that the procedure used presented “a substantial risk of serious harm.” The opinion also suggested a standard to guide lower courts when they have been asked to modify a lethal injection protocol in order to satisfy the Eighth Amendment.

An alternative method, it said, must be “feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.” If a state refuses to turn to such an alternative, the opinion added, it must be able to show it has a “legitimate penological objective” for not making a change. If it has no such justification, staying with its existing system, the opinion declared, would be deemed “cruel and unusual.”

While that approach is written in terms of when an alternative method might be ordered, it could also serve as a formula for judging the constitutionality of a specific execution that has gone awry – as the Oklahoma execution on Tuesday night seems to have. The key question would seem to be: did the execution team perform the process in a way that they could have known would involve a “substantial risk of serious pain”? If so, the Eighth Amendment could have been violated.

That would involve an inquiry into a full awareness of the effects that each drug in the procedure would very likely have, an examination of whether the procedure did in fact give the drugs a chance to work as intended, and a review of each step in the process to determine why it went wrong and whether that could have been avoided. Autopsy results on the dead inmate – if death had resulted — would have to be examined to see if there is evidence of the kind of physical or mental suffering that would suggest that the pain, in fact, had crossed the threshold into severity. If the inmate somehow survived the procedure, then the inquiry into the pain level might be more successful.

If the outcome of such an inquiry did point to an Eighth Amendment violation, then a court – if someone were able to sue (not an easy question itself, if the inmate had died) – would have to define who or what was to blame and give officials the task of finding a way to prevent a recurrence.

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