Alabama will not execute eight death-row prisoners by means of the problematic lethal-injection protocol they have been challenging, but will instead carry out the executions using lethal gas. In a Joint Motion to Dismiss the prisoners' federal litigation over the state's execution protocol, filed on July 10, 2018, the parties agreed that the lawsuit had been rendered moot by the state's passage of legislation authorizing execution by nitrogen gas and the prisoners' election to die by nitrogen hypoxia. Alabama's lethal-injection process uses the controversial sedative midazolam, which has been implicated in numerous executions across the country that have been described as "botched." In October 2017, witnesses to Alabama's 35-minute execution of Torrey McNabb reportedly "expressed repeated concerns to each other that he was still conscious during the lethal injection." Alabama federal defender Christine Freeman, the director of the Alabama Post-Conviction Relief Project, testified on July 10 in separate litigation over Tennessee's lethal-injection process that she had witnessed McNabb grimacing and raising his arm up twenty minutes into the execution, well after the midazolam was supposed to have rendered him unconscious. Witnesses also reported that Alabama prisoner Ronald Smith heaved, coughed, clenched his left fist, and opened one eye during one 13-minute period of his 34-minute execution in December 2016. After Alabama added nitrogen gas as an option for carrying out the death penalty, the prisoners had a June 30 deadline to select gas as the method of their execution. In a nitrogen hypoxia execution, the prisoner breathes pure nitrogen, which displaces oxygen in the bloodstream, suffocating them. Experts characterized the prisoners' choice as preferring the unknown risks of execution by nitrogen gas to the known risks of execution by lethal injection. Nitrogen gas has never been used as a method of execution in the United States, but has been approved as an option by three states—Alabama, Mississippi, and Oklahoma. Of the three states, only Alabama leaves the choice of execution method to the prisoner. Mississippi and Oklahoma allow nitrogen executions only if lethal injection is held unconstitutional or is "otherwise unavailable," although Oklahoma has indicated that it is developing a lethal gas protocol to replace lethal injection. According to the federal defender's office representing the Alabama prisoners, their clients in the case, "and anyone else who elected the new method, cannot now be executed by lethal injection." Alabama still must develop a nitrogen-hypoxia protocol before it can carry out any executions using that method, and the prisoners have not waived their right to challenge that protocol. Federal public defender John Palombi, who represents the prisoners, said "While the best way to reduce the risks of botched executions would be to abolish the death penalty, if the death penalty does exist, it must be carried out in a constitutional manner with the respect and dignity that is required of such a solemn event." Alabama's lethal-injection protocol is the most secretive in the nation. Palombi encouraged the state to make the nitrogen hypoxia protocol public "so that the people of the state of Alabama know what is being done in their name."

A new study of Tennessee's death penalty concludes that the state's capital-punishment system is "a cruel lottery" that is "riddled with arbitrariness." The study, published in the summer 2018 issue of the Tennessee Journal of Law and Policy, examined every first-degree murder case in Tennessee since 1977 to determine whether the state had redressed the arbitrariness that led the U.S. Supreme Court to declare the nation's death-penalty laws unconstitutional in 1972. In their article, Tennessee's Death Penalty Lottery, lawyers H.E. Miller, Jr., who conducted the study, and Bradley A. MacLean write that the odds "are close to nil" that a person who was supplied with a description of the 2,514 first-degree murder cases prosecuted in Tennessee in the last forty years could identify the 86 cases that have resulted in death sentences sustained on appeal or the six cases that have resulted in executions. The facts of the crime, they found, did not predict whether a death sentence would be imposed. Rather, the best indicators were arbitrary factors such as where the murder occurred, the race of the defendant, the quality of the defense, and the views of the prosecutors and judges assigned to the case. The study found that more Tennessee death sentences have been overturned in the courts — 106 — than have been sustained, and many of the sustained cases are still under post-conviction appeal. Moreover, the study found "a sharp decline" in death sentences imposed over the past twenty years. In the four-year period from July 1989 through June 1993, there were 282 first-degree murder cases in Tennessee, with 38 trials resulting in death sentences; from July 2009 through June 2013, 284 first-degree murder cases produced six death sentences. Tennessee has imposed only one new death sentence since 2013. The authors concluded that "[t]he death penalty system as it has operated in Tennessee over the past 40 years, and especially over the past ten years, is but a cruel lottery, entrenching the very problems that [the Supreme Court] sought to eradicate." The study was released shortly before Tennessee is scheduled to perform its first execution in nearly nine years. The state plans to execute Billy Ray Irick on August 9, 2018, using a three-drug protocol (midazolam, vecuronium bromide, and potassium chloride) that has been implicated in past botched executions in other states. More than 30 death-row prisoners are suing the state, arguing that the protocol violates the Eighth Amendment ban on cruel and unusual punishment. Even Tennessee's own corrections staff has raised concerns about the plan. An unidentified state employee who was working to obtain lethal injection drugs wrote in an email to state officials: "Here is my concern with Midazolam. Being a benzodiazepine, it does not elicit strong analgesic effects. The subjects may be able to feel pain from the administration of the second and third drugs. Potassium chloride, especially." The state's plan to use compounded drugs has also drawn criticism, in part because drug-production by compounding pharmacies is not subject to the same regulatory oversight as drugs produced by major manufacturers. In a trial that began July 9, lawyers for the prisoners argued that medical evidence will show that Tennessee's three-drug combination is the equivalent of chemical waterboarding, being buried alive, or being exposed to liquid fire or sarin gas. Prosecutors have argued that to be unconstitutional, the state's execution method would have to amount to torture or be a gruesome practice such as disembowelment, beheading, or burning at the stake.

Justice Anthony Kennedy's votes swung both to the right and to the left on death-penalty issues, professors Carol Steiker (pictured, l.) of Harvard Law School and her brother, Jordan Steiker (pictured, r.) of the University of Texas School of Law write in a commentary for SCOTUSblog, "but [he] declined to swing for the fences." The Steikers, who co-authored the acclaimed book, Courting Death: The Supreme Court and Capital Punishment, recount Justice Kennedy's nuanced interpretation of the Eighth Amendment and his mixed legacy as a swing vote on capital punishment. Though he was "a frequent supporter of restrictions on the availability of federal habeas review of capital cases, a skeptic of claims challenging the constitutionality of lethal injection and a relatively reliable vote against granting stays of execution in end-stage capital litigation," they write, he also was "the author of numerous opinions that broke new ground in the court’s Eighth Amendment jurisprudence." Most notably, he joined or authored landmark decisions that narrowed the scope of the death penalty, exempting defendants with intellectual disability, juvenile offenders, and those who committed non-homicide crimes. Those decisions on the Court's "proportionality doctrine" had systemic impact on the administration of the death penalty nationwide and paved the way for later decisions banning the use of mandatory life-without-parole sentences for juveniles. However, Justice Kennedy was content to grapple with the constitutionality of individual death-penalty practices one at a time, rather than addressing the constitutionality of capital punishment as a whole. Kennedy's role as a swing vote is illustrated by his change of heart on guarantees of individualized sentencing. In his early days on the Court, he voted to restrict defendants' rights to the consideration of mitigating evidence that could spare their lives, but nearly 20 years later, as the Court as a whole moved ideologically to the right, he shifted leftwards and joined majority opinions that broadly protected the rights to present and have capital sentencers meaningfully consider that evidence. In 1989, he provided the fifth vote in Stanford v. Kentucky to permit the use of the death penalty against offenders aged sixteen and seventeen. By 2005, citing an evolution of values in the United States, he authored the Court's 5-4 decision in Roper v. Simmons banning the death penalty for offenders under age eighteen. In 2015, Kennedy started an important discussion of the conditions of incarceration on death row, raising questions about the effects of long-term solitary confinement. Justice Stephen Breyer drew on Kennedy's concerns in his dissent in Glossip v. Gross, questioning the constitutionality of capital punishment.

Eight days before the scheduled July 11, 2018 execution of Scott Dozier, the Nevada Department of Corrections issued a new lethal-injection protocol, switching the drugs the state intends to use in carrying out his execution. On July 3, the Department announced that it plans to use an untested three-drug protocol of the sedative midazolam, the opioid fentanyl, and the paralytic cisatracurium. The last-minute change prompted an emergency filing by the ACLU of Nevada seeking additional information about the drugs the state will use. In November 2017, Nevada had announced a different, but also untried execution method involving diazepam (Valium), fentanyl citrate, and cisatracurium besylate. A Nevada trial court declared that protocol unconstitutional in November after considering medical evidence that the paralytic drug, cisatracurium, could cause Dozier to experience “air hunger” and suffocate to death, while masking signs that he was conscious and suffering during the execution. Nevada prosecutors appealed, and the Nevada Supreme Court overturned the ruling on procedural grounds, allowing the execution to go forward. During the course of the state’s appeal, however, its supply of diazepam expired, leaving the Nevada with the choice of delaying the execution or changing its protocol. The ACLU was particularly critical of the protocol’s switch to midazolam, which has been involved in the botched executions of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama and in problematic executions in Arkansas and Virginia. “I think the state of Nevada should think very carefully about whether it wants to use it, especially because of its very concerning history and its association with botched executions,” said Amy Rose, the legal director of the ACLU of Nevada. “I don’t think Nevada wants to be known for having a botched execution.” The paralytic, they argue, could potentially mask serious pain that prisoners experience during executions. The lawsuit seeks information about the process used to arrive at the protocol, the purchase orders for the drugs, and the use of a new execution chamber. Dozier has waived his appeals, allowing his execution to proceed without completing judicial review of the constitutionality of his conviction and death sentence. He would be the first person executed in Nevada since 2006, and his execution would be the first to take place in the new execution chamber that the state built in 2016 at taxpayer expense of $860,000. The state has executed twelve prisoners since the 1970s, eleven of whom waived their appeals.