Article of Interest: New Academic Article Explains Why Executions are Becoming ​“Crueler”

In a February 2026 arti­cle pub­lished in the Ohio State Journal of Criminal Law, Professor Deborah Denno charts how exe­cu­tion meth­ods in the United States ​“have become cru­el­er” over the past fifty years. Her arti­cle details exe­cu­tion pro­ce­dures adopt­ed across death penal­ty states from 1977 to 2025, ana­lyz­ing their soci­etal and cul­tur­al under­pin­nings, and expos­ing their ​“flaws, unsci­en­tif­ic ori­gins, and reliance on unqualified executioners.” 

While states and courts claim to ​“move from one tech­nique to the next to enhance greater humane­ness,” Professor Denno argues that ​“his­to­ry shows that such switch­es are pri­mar­i­ly pro­pelled by con­sti­tu­tion­al chal­lenges to a state’s par­tic­u­lar tech­nique.” According to Professor Denno, ​“ren­der­ing a state’s exe­cu­tion method uncon­sti­tu­tion­al” could ​“in the­o­ry” threat­en the very exis­tence of the death penal­ty, explain­ing why states may ​“hold tight to a prob­lem­at­ic method for decades.” She notes that the ​“embrace [of] tur­moil of chang­ing exe­cu­tion meth­ods” has led two states — Florida and Tennessee — to allow ​“the use of any con­sti­tu­tion­al method” should their spec­i­fied meth­ods of exe­cu­tion not be available.

In her arti­cle, Professor Denno cat­a­logues cur­rent meth­ods of exe­cu­tion by state. As of the end of 2025, most states allow exe­cu­tion by lethal injec­tion, but in fif­teen states incar­cer­at­ed indi­vid­u­als can choose between lethal injec­tion or an alter­na­tive: elec­tro­cu­tion, fir­ing squad, or lethal gas, although not all states offer all methods. 

Professor Denno also reviews how promi­nent meth­ods of exe­cu­tion over the past forty years fall into dis­use: a method is deemed appro­pri­ate for a time; then inap­pro­pri­ate after cul­tur­al shifts or inac­ces­si­bil­i­ty; a new method is intro­duced; and the cycle begins again. She observes that ​“while each method is bar­bar­ic and defunct in its own way, at one time, that method was part of a soci­etal pro­gres­sion toward a seem­ing­ly more humane and effective procedure.” 

An exam­ple of this is the tran­si­tion from hang­ing to elec­tro­cu­tion to lethal injec­tion. Hanging was nev­er deemed uncon­sti­tu­tion­al, but accord­ing to Professor Denno, ​“the rev­e­la­tions from Campbell and Rupe [two cas­es that addressed the con­sti­tu­tion­al­i­ty of the prac­tice and found its appli­ca­tion could, in cer­tain cir­cum­stances, be con­sid­ered cru­el and unusu­al in vio­la­tion of the Eighth Amendment], impact­ed how hang­ing was per­ceived, both legal­ly and societally.” 

Hanging gave way to elec­tro­cu­tion. The sub­se­quent high botch rate of elec­tro­cu­tions, Professor Denno, explains, led to its even­tu­al dis­use. One exam­ple is the botched 1999 exe­cu­tion of Allen Davis. Nine states still spec­i­fy elec­tro­cu­tion as a pos­si­ble method of exe­cu­tion. Between 1994 and 2000, there were 144 exe­cu­tions by elec­tro­cu­tion in the mod­ern death penal­ty era. Since then, there have been 19, the last being that of Nicholas Todd Sutton by Tennessee in 2020. 

Electrocutions gave way to lethal injec­tion, which Professor Denno notes ​“would become not only the most wide­ly used exe­cu­tion method — even­tu­al­ly adopt­ed by all death penal­ty states — but seem­ing­ly among the most prob­lem­at­ic and botched[.]” As drug com­pa­nies balked at play­ing a role in these exe­cu­tions and it has become hard­er to acquire the drugs need­ed, some states have cho­sen to exe­cute peo­ple using a new and untest­ed method: suf­fo­ca­tion by nitrogen gas.

Professor Denno saves her harsh­est crit­i­cism for the recent adop­tion by some states of exe­cu­tion by nitro­gen hypox­ia. She notes that ​“unlike pre­ced­ing meth­ods, nitro­gen hypox­ia has no cul­tur­al moor­ing or socio-sci­en­tif­ic foun­da­tion.” Nitrogen hypox­ia has been used eight times in the last two years, in Alabama and Louisiana, and is an option for use in Arkansas. The method forces the pris­on­er to breathe pure nitro­gen, depriv­ing the brain and body of oxy­gen and caus­ing death by suf­fo­ca­tion. According to Professor Denno, nitro­gen hypox­ia ​“was not inher­it­ed from anoth­er coun­try (like hang­ing), or part of an age of dis­cov­ery (like elec­tro­cu­tion), derived from a world war (like lethal gas), or even the prod­uct of a politician’s rec­om­men­da­tion based on prac­tices for humane­ly euth­a­niz­ing ani­mals (lethal injec­tion).” Nitrogen hypox­ia, she con­cludes, ​“is the result of states dan­ger­ous­ly grasp­ing for what­ev­er may be in ​‘the kitchen’ to shift from the shel­ter of incom­pe­tence they have cre­at­ed to per­pet­u­ate the death penalty’s existence.”