Earlier this month, the concept of cruel and unusual punishment briefly captured the country’s attention after the state of Tennessee on Sept. 30 tried and failed to execute Christa Pike. Pike, who was sentenced to death for the 1995 murder of Colleen Slemmer, survived being injected with two lethal doses of pentobarbital. As she recovered from her injuries, including arm burns, at a Nashville hospital, commentators debated whether it would be cruel and unusual – and therefore unconstitutional – for Tennessee officials to seek to execute Pike again.
This debate drew attention to a range of past Supreme Court rulings on the death penalty, including a case in which the court allowed a second attempt at executing someone who, as a result of a mechanical problem, survived electrocution. However, it also highlighted a number of unresolved issues in this area, including how the constitutional analysis may change if a state is found to have ignored warnings that an execution attempt may go awry.
Cruel and unusual punishment and the death penalty
The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” But what is a cruel and unusual punishment? The Supreme Court has returned repeatedly to that question in the broad context of criminal law and the specific context of capital punishment.
And while past rulings provide some clear examples of what the court considers to be cruel and unusual punishment – for example, sentencing an individual to death for a crime he or she committed as a minor or sentencing an individual who is intellectually disabled to death – the Supreme Court’s Eighth Amendment jurisprudence is far from resolved.
Still, courts do not start from scratch when they undertake an Eighth Amendment analysis. The Supreme Court has outlined factors to consider, including, most notably, “evolving standards of decency” (though this test itself is controversial, especially among originalists like Justice Clarence Thomas).
The phrase comes from 1958’s Trop v. Dulles, in which the court held that revoking the citizenship of a former Army private who deserted his post and was then dishonorably discharged violated the Eighth Amendment’s ban on cruel and unusual punishment. Writing for a five-justice majority, Chief Justice Earl Warren observed that “the words of the Amendment are not precise” and “their scope is not static.” As a result, he continued, the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
What this means in practice is that the Supreme Court has often surveyed state laws to determine whether there is a national consensus on the issue before it. If a challenged punishment is commonly applied, it’s taken to be broadly accepted. If it’s not, then the justices are more likely to determine that the punishment is cruel and unusual.
Importantly, as Warren noted, standards of decency change over time. As a result, a punishment that was once deemed constitutional may cease to be. Indeed, when the Supreme Court in 2005 held that defendants could not be sentenced to the death penalty for a crime they committed before turning 18, the decision was contrary to a past ruling allowing capital punishment for certain juvenile offenders. Justice Anthony Kennedy, writing for the majority, cited new state laws outlawing the death penalty for minors to help explain the change.
Separately, the Supreme Court has offered guidance on how to apply the Eighth Amendment’s ban on cruel and unusual punishment in 2008’s Baze v. Rees and 2015’s Glossip v. Gross, which specifically addressed how to assess the constitutionality of an execution method. Under the Baze-Glossip test, a prisoner challenging a state’s execution protocol must first show that it poses a “substantial risk of serious harm” and then show that an alternative execution method is “feasible, readily implemented, and in fact significantly reduce
These landmark rulings from the past form a backdrop for current debates about cruel and unusual punishment, including debates that have been in the news in recent months.
Can a state execute the survivor of a botched execution by lethal injection?
As noted above, Pike’s botched execution raised questions about the constitutionality of attempting to execute someone who has survived a previous such attempt. Specifically, legal experts have asked whether a second attempt to execute Pike would constitute cruel and unusual punishment, for any of several reasons: because Tennessee officials went ahead with the first execution attempt despite being warned by her lawyers that Pike has “unusually small veins” and was thus was a poor candidate for lethal injection; because she has already suffered immensely; or because, as a result of her lingering injuries, she is no longer able to understand why she is being executed.
In some ways, it is difficult to apply Supreme Court precedent to Pike’s case because she is believed to be “the first person to have survived administration of pentobarbital.” Although the court previously addressed a botched execution in 1947’s Louisiana ex rel. Francis v. Resweber, some details of that case distinguish it from Pike’s situation, including that it involved mechanical, rather than medical, issues.
The earlier case centered on Willie Francis, who was convicted of murder in Louisiana in 1945 and sentenced to death. On May 3, 1946, he was placed in the electric chair, but, as the Supreme Court later noted, he received a non-fatal “current of electricity,” “presumably because of some mechanical difficulty.” When Louisiana announced its intent to make another attempt at executing him, Francis challenged that decision on constitutional grounds, claiming, among other things, that the second execution attempt would violate the Eighth Amendment. His case made it to the Supreme Court, which ruled in 1947 that Louisiana could proceed with the execution, emphasizing that the botched execution was an “accident” and concluding that Francis’ past exposure to “a current of electricity does not make his subsequent execution any more cruel in the constitutional sense than any other execution.”
On Oct. 8, one of Pike’s attorneys told ABC News that “there’s a lot of cognitive uncertainty left” and that “it may take months to fully understand” the extent of her “cognitive injuries.” The Supreme Court has previously held that executing someone who has “lost his sanity” while on death row amounts to cruel and unusual punishment. It later clarified that this ban applies whenever an inmate, due to mental illness, lacks a “rational understanding” of “the State’s rationale” for pursuing his or her execution. And in 2019, the Supreme Court cited these two decisions in holding that the Eighth Amendment may prohibit the execution of any prisoner who lacks this “rational understanding,” even when the confusion stems from a medical issue, such as dementia, rather than a mental illness. Pike’s attorneys will likely draw on these rulings to fight a potential future execution attempt if Pike continues to face cognitive issues.
For their part, Tennessee officials have not announced plans to attempt a second execution of Pike, but they also haven’t taken it off the table.
On Oct. 10, Pike was released from the hospital and returned to prison, where she remains on death row.
Can states impose the death penalty for sexual offenses against children?
Another issue that has recently resurfaced is whether executing individuals who have committed sexual offenses against children violates the Eighth Amendment. In a 2008 case called Kennedy v. Louisiana, the Supreme Court held that imposing the death penalty in cases involving the rape of a child but not the murder or attempted murder of that child is unconstitutional. The majority cited “evolving standards of decency” in drawing this conclusion, noting that few states treated child rape as a capital offense. “The evidence of a national consensus with respect to the death penalty for child rapists ... shows divided opinion but, on balance, an opinion against it,” wrote Justice Kennedy for the court.
In recent years, several Republican-led states, including Alabama, Florida, and Tennessee, have nevertheless passed death penalty laws for child rape and called on the Supreme Court to revisit its decision in Kennedy. In late June, Judge Joshua Divine of the U.S. District Court for the Eastern District of Missouri highlighted these efforts in what SCOTUSblog columnist Daniel Harawa described in a September column as an “unusual” sentencing opinion.
Divine wrote to “explain why, contrary to common belief, Supreme Court precedent does not prohibit capital punishment for nonhomicide sexual offenses against children.” The Supreme Court’s conclusion in Kennedy “that a national consensus existed in 2008 against” imposing the death penalty in such cases, Divine continued, “does not foreclose a court from finding, two decades later, that any national consensus is long gone and that those who harm children may now be executed.”
Even as Divine argued that a decision overturning Kennedy could be justified with the “evolving standards of decency” precedent, he suggested that the Supreme Court should abandon that approach to cruel and unusual punishment and instead focus on “the original and historical understanding of the Eighth Amendment.” Under such an approach, the meaning of “cruel and unusual” in 1791, when the amendment was adopted, would matter more in a court’s analysis than modern state laws and public sentiment.
At the very least, Divine’s opinion served as a reminder that the Supreme Court may soon be asked to reconsider its ruling in Kennedy.
Does nitrogen gas execution violate the Eighth Amendment?
Earlier in June, the Supreme Court brought attention to yet another lingering question about the scope of the Eighth Amendment’s ban on cruel and unusual punishment when it declined to clear the way for Alabama to execute Jeffery Lee, who was sentenced to death in 2000 for murdering Jimmy Ellis and Elaine Thompson during a robbery. The state had asked the court to pause or vacate lower-court decisions barring the state from executing Lee with nitrogen gas. These decisions called the execution method – which involves placing a mask dispensing the gas over a prisoner’s face until the prisoner passes out and dies from lack of oxygen – “likely unconstitutional.”
As I reported earlier this year, the debate over nitrogen gas executions has been ongoing since January 2024, when the first such execution in the United States took place in Alabama. Some witnesses to that execution reported that the process took much longer than expected and that Kenneth Smith, the man being executed, had remained alive gasping for air for several minutes while the gas was flowing. These accounts were notable because proponents of nitrogen gas execution had presented it as a more humane alternative to lethal injection: Alabama had claimed “that the new execution method would quickly cause unconsciousness and death.”
Since then, seven more nitrogen gas executions have taken place in the U.S., and many more witnesses have raised concerns about an apparent disparity between how the procedure was expected to unfold and what they saw. Justice Sonia Sotomayor summarized these concerns in her dissent from the court’s decision to allow a nitrogen gas execution to proceed last fall, which was joined by Justices Elena Kagan and Ketanji Brown Jackson. “[F]irsthand accounts ... reveal that nitrogen hypoxia is not at all what it was promised to be,” Sotomayor wrote, highlighting descriptions of “violent movements,” “heaving back and forth,” and “clear gasping for the air that will not come.”
Such accounts played a role in Lee’s challenge to Alabama’s plan to execute him with nitrogen gas. Initially, a federal district court in Alabama rejected Lee’s claim that this execution method violated the ban on cruel and unusual punishment. But then the U.S. Court of Appeals for the 11th Circuit agreed with Lee that “Alabama’s nitrogen hypoxia protocol presents a substantial risk of serious harm—severe pain over and above death itself” – and therefore concluded that he had satisfied the first prong of the Baze-Glossip test. The 11th Circuit sent Lee’s case back to the district court, instructing it to address the second prong: whether Lee’s proposed alternative execution method – death by firing squad – “is feasible, readily implemented, and in fact significantly reduces the risk of harm involved.”
On remand, the district court sided with Lee and barred Alabama from proceeding with his execution. After the 11th Circuit declined to lift the stay, state officials asked the Supreme Court to allow the execution to take place as scheduled. Late on June 11, the court denied Alabama’s request over noted – but unexplained – dissents from Thomas and Justices Samuel Alito and Neil Gorsuch. As The New York Times reported at the time, “Lee’s supporters and activists against the death penalty saw the Supreme Court’s decision as an incremental victory that could nevertheless go a long way in bolstering their efforts to challenge the legality of nitrogen hypoxia.”
Last month, Lee was executed by lethal injection instead. A different death row inmate, Todd Wessinger, has challenged Louisiana’s plan to execute him with nitrogen gas on Eighth Amendment grounds. It’s not yet clear if Wessinger’s case will make it to the Supreme Court because, in response to his challenge, Louisiana offered him the option of dying by lethal injection.
How do states determine that a defendant is intellectually disabled?
In addition to barring, as discussed above, the execution of prisoners who no longer understand why they are being executed, the Supreme Court has held that it violates the ban on cruel and unusual punishment to sentence an individual who is intellectually disabled to death. Such a sentence is unconstitutional, the court explained in 2002’s Atkins v. Virginia, because cognitive impairments limit one’s ability to understand the seriousness of a crime and to respond as expected to the threat of capital punishment. As a result, in line with “evolving standards of decency,” executing defendants with intellectual disabilities will not “measurably advance the deterrent or the retributive purpose of the death penalty,” wrote Justice John Paul Stevens in the majority opinion.
Significantly, the Atkins majority left it up to states to determine whether a convicted criminal is intellectually disabled, fueling additional litigation about such determinations. Last term, the Supreme Court appeared poised to bring some clarity to the situation in Hamm v. Smith, a case involving how courts should assess a claim under Atkins when the defendant has obtained multiple IQ scores. The case was dismissed as improvidently granted in May, however, five months after it was argued.
In a dissenting opinion joined at least in part by the three other justices who did not join the majority, Alito predicted that the court’s failure to rule “will have regrettable consequences” by furthering confusion over how to apply Atkins. In a solo dissent, Thomas contended that the court should overrule Atkins altogether.
If confusion over how to apply Atkins does indeed persist, the Supreme Court may take up a future case presenting the same question as Hamm v. Smith – a possibility that Sotomayor acknowledged in a concurring opinion. “It may be appropriate for this Court to weigh in with more specific guidance about the permissible method or methods by which courts must analyze such scores” in the future, she wrote.
Ongoing debates
As these developments make clear, what constitutes cruel and unusual punishment remains an ongoing – and deeply contentious – issue at the court. And although it is unclear which of these debates will return to the justices next, all of them have the potential to reshape some of its most profound decisions.
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[ H/T SCOTUSblog ]
