Facts About the Death Penalty – Is there a ​“Humane” Execution Method?

Some elect­ed offi­cials and leg­is­la­tors have recent­ly pro­mot­ed some meth­ods of exe­cu­tion as more ​“humane” than others. 

But every exe­cu­tion method ever used has been shown to car­ry the risk of error and mal­func­tion, with the result that the pris­on­er may expe­ri­ence pain and suf­fer­ing as they are executed. 

Exactly how much pain and suf­fer­ing the law per­mits is a con­sti­tu­tion­al ques­tion that has evolved with time and society’s beliefs. Methods once viewed as grue­some but accept­able, such as draw­ing and quar­ter­ing, burn­ing, or hang­ing, are now con­sid­ered to be cru­el and inhu­mane. New exe­cu­tion tech­niques often emerge under the promise of greater ​“human­i­ty” only to reveal their own poten­tial for suf­fer­ing and failure. 

Fact: The Supreme Court Posits That There ​“Must Be” Methods of Execution Consistent with the Eighth Amendment; And it has Never Found an Execution Method to be Cruel and Unusual.  

The Supreme Court has repeat­ed­ly stat­ed that cap­i­tal pun­ish­ment is con­sti­tu­tion­al, which implies there is a con­sti­tu­tion­al means to imple­ment a death sen­tence. However, the Court’s jurispru­dence has effec­tive­ly trans­formed the Eighth Amendment from a con­sti­tu­tion­al safe­guard for pris­on­ers against cru­el and unusu­al pun­ish­ment into a shield for executing states. 

The Court has nev­er found a method of exe­cu­tion uncon­sti­tu­tion­al. In fact, in Baze v. Rees (2008), the Court stat­ed that because it is set­tled that cap­i­tal pun­ish­ment is con­sti­tu­tion­al, “[i]t nec­es­sar­i­ly fol­lows that there must be a [con­sti­tu­tion­al] means of car­ry­ing it out.” The Court has also accept­ed that the Constitution ​“does not guar­an­tee a pris­on­er a pain­less death” (Bucklew v. Precythe (2019)), but it also cau­tioned in Baze that ​“the State’s cho­sen pro­ce­dure for car­ry­ing out the sen­tence of death” can the­o­ret­i­cal­ly uncon­sti­tu­tion­al­ly ​“super­add[] pain to the death sen­tence.” To date, the Court has nev­er found an exe­cu­tion method that has ​“super­added” pain, despite evi­dence of numer­ous botched exe­cu­tions that have led to what wit­ness­es describe as extreme suf­fer­ing. At times, the Court has even praised states for aim­ing to make exe­cu­tions ​“less painful.” 

Challenges to meth­ods of exe­cu­tion large­ly rest on the Eighth Amendment pro­tec­tion against cru­el and unusu­al pun­ish­ment. Under the Supreme Court’s frame­work, laid out in Bucklew, to prove a par­tic­u­lar exe­cu­tion method vio­lates the Eighth Amendment, an indi­vid­ual fac­ing exe­cu­tion must show that ​“a fea­si­ble and read­i­ly imple­ment­ed alter­na­tive method [of exe­cu­tion] that would sig­nif­i­cant­ly reduce a sub­stan­tial risk of severe pain” is avail­able, and that the State ​“has refused to adopt [that method] with­out a legit­i­mate peno­log­i­cal rea­son.” The bur­den rests entire­ly on the con­demned to sug­gest a bet­ter way to die, rather than on the state to prove that its method does not inflict uncon­sti­tu­tion­al pain and suf­fer­ing. No pris­on­er has ever pre­vailed under this test. 

The Court’s pos­ture effec­tive­ly per­mits states to invent, test, and defend new meth­ods of exe­cu­tion, rather than affir­ma­tive­ly ensur­ing that the prac­tice can be per­formed humane­ly and with­out unac­cept­able risk of pain and suf­fer­ing. For exam­ple, in 2015, Oklahoma pro­posed using untest­ed drug com­bi­na­tions to car­ry out lethal injec­tions due to drug short­ages. Richard Glossip, who was about to be exe­cut­ed using this new untest­ed drug com­bi­na­tion, chal­lenged the state’s exper­i­men­ta­tion under the Eighth Amendment in Glossip v. Gross. The Court found Oklahoma’s exper­i­men­ta­tion did not con­sti­tute cru­el and unusu­al pun­ish­ment, even though the results of this method of exe­cu­tion were unknown. Justice Sotomayor dis­sent­ed from the denial of Mr. Glossip’s chal­lenge, warn­ing that Oklahoma’s tri­al of new drug com­bi­na­tions risked cre­at­ing ​“the chem­i­cal equiv­a­lent of being burned at the stake.” 

Fact: Seeking a more ​“humane” form of execution has deep historical roots. 

Throughout his­to­ry, soci­eties that used cap­i­tal pun­ish­ment have fre­quent­ly replaced one exe­cu­tion method with anoth­er they believed to be less cru­el or more efficient. 

During the Enlightenment, the guil­lo­tine was intro­duced in France as a more humane alter­na­tive to man­u­al behead­ing. Dr. Joseph-Ignace Guillotin pro­posed the device in 1789, claim­ing, ​“Now, with my machine, I cut off your head in the twin­kling of an eye, and you nev­er feel it!” However, Dr. Guillotin’s opti­mism proved mis­placed. Witnesses claimed that vic­tims of the guil­lo­tine remained con­scious for sev­er­al min­utes after behead­ing. This led Dr. Guillotin to com­plete­ly alter his views and to even­tu­al­ly seek to abol­ish the death penal­ty in France. 

In the North American colonies, the guil­lo­tine saw lim­it­ed use and hang­ing was the pre­dom­i­nant form of exe­cu­tion. Hanging is still legal­ly per­mit­ted as a method of exe­cu­tion in New Hampshire and Delaware, although the death penal­ty has been abol­ished in both states. Hanging is still active­ly used as a method of exe­cu­tion in many oth­er coun­tries, how­ev­er, includ­ing Iran, Japan, and Taiwan. If prop­er­ly done, the rope used in hang­ing is mea­sured to drop the pris­on­er a suf­fi­cient dis­tance so that the sec­ond bone on the individual’s neck is bro­ken instant­ly, caus­ing their blood pres­sure to plum­met to zero in less than one sec­ond. Even then, the heart can con­tin­ue beat­ing for up to 20 min­utes. Improper cal­cu­la­tions, how­ev­er, have result­ed in decap­i­ta­tion or slow stran­gu­la­tion. 

The use of hang­ing as a legal form of exe­cu­tion began to lose favor in the United States in light of the thou­sands of extra­ju­di­cial racial­ly moti­vat­ed lynch­ings that occurred in many Southern states after the Civil War. In 1886, New York estab­lished the ​“Gerry Commission” to find a more ​“humane” sub­sti­tute. After review­ing 34 exe­cu­tion meth­ods, the Commission con­clud­ed elec­tro­cu­tion was a more humane method than hang­ing, lead­ing to the inven­tion of the elec­tric chair. ​“Botched” elec­tric chair exe­cu­tions soon fol­lowed. Most recent­ly, in 1990, when Jesse Tafero was exe­cut­ed by elec­tric chair by the State of Florida, wit­ness­es report­ed that six-inch flames erupt­ed from his head dur­ing the exe­cu­tion. In 1999, Allen Lee Davis bled pro­fuse­ly while strapped to the chair, lead­ing a Florida Supreme Court Justice to describe his exe­cu­tion as ​“bru­tal­ly tortured.” 

Nine states still allow elec­tro­cu­tion as a method of exe­cu­tion: Alabama, Arkansas, Florida, Kentucky, Louisiana, Mississippi, Oklahoma, South Carolina, and Tennessee. The supreme courts of Georgia (2001) and Nebraska (2008) have ruled the use of the elec­tric chair vio­lates their state con­sti­tu­tion­al pro­hi­bi­tions against cru­el and unusual punishment. 

Fact: By 2009, every state actively executing prisoners had adopted lethal injection as its primary method of execution — lethal injection has now become the most error-prone execution method used in the United States. 

In the 21^st cen­tu­ry, as pub­lic oppo­si­tion to old­er meth­ods inten­si­fied, states once again pur­sued a more ​“humane” method of exe­cu­tion, result­ing in the wide­spread adop­tion of lethal injec­tion. Lethal injec­tion has since been shown to result in suf­fer­ing and risk at least com­pa­ra­ble to the prac­tices it replaced. 

Lethal injec­tion was first pro­posed as a qui­eter, seem­ing­ly more ster­ile form of exe­cu­tion than the elec­tric chair. The three-drug pro­to­col com­mon­ly (but not exclu­sive­ly) used to car­ry out lethal injec­tion is designed to first anes­thetize, then par­a­lyze, and final­ly stop the heart. On December 7, 1982, Texas became the first state to use lethal injec­tion, dur­ing the exe­cu­tion of Charlie Brooks, Jr. Mr. Brooks report­ed­ly ​“yawned” before being pro­nounced dead, bol­ster­ing the idea that his exe­cu­tion was painless. 

Today, there is com­pelling evi­dence that many peo­ple exe­cut­ed using lethal injec­tion suf­fer severe phys­i­cal dis­tress and feel­ings of suf­fo­ca­tion before their death. It is report­ed that pul­monary ede­ma, a con­di­tion that caus­es a sen­sa­tion of drown­ing, has been found present in 84% of autop­sies con­duct­ed after lethal injec­tion exe­cu­tions. Additionally, approx­i­mate­ly 7.2% of all exe­cu­tions by lethal injec­tion have been con­sid­ered ​“botched,” mak­ing it the most error-prone exe­cu­tion method ever used in the United States. 

Fact: Current trends show states are adopting largely disused methods of execution and experimenting with new, untested methods.  

In recent years, a com­bi­na­tion of lim­it­ed access to exe­cu­tion drugs, high costs asso­ci­at­ed with lethal injec­tion, and the Supreme Court’s reluc­tance to review exe­cu­tion meth­ods has embold­ened states to exper­i­ment with alter­na­tive meth­ods of exe­cu­tion, includ­ing using untest­ed drug com­bi­na­tions, fir­ing squads, and suf­fo­cat­ing pris­on­ers with nitrogen gas. 

The ear­li­est record­ed exe­cu­tion by fir­ing squad in America took place in 1608 in Jamestown Virginia. Today, five states allow this method (Idaho, Mississippi, Oklahoma, Utah, and South Carolina). Some see death by fir­ing squad as a humane method of exe­cu­tion because of its seem­ing­ly instan­ta­neous nature, but evi­dence from indi­vid­u­als who have been exe­cut­ed by this method shows oth­er­wise. In 1938, John Deering became the sub­ject of an exper­i­ment to observe what would hap­pen to the human heart dur­ing death by gun­shot as he was exe­cut­ed in Utah. The elec­tro­car­dio­gram hooked to him revealed his heart stopped beat­ing only after 15 sec­onds had passed from the first shot. More recent­ly, in 2025, Mikal Mahdi was exe­cut­ed by fir­ing squad in South Carolina. His autop­sy revealed that bul­lets large­ly missed his heart before hit­ting his pan­creas, liv­er, and low­er lung. He report­ed­ly groaned twice and con­tin­ued breath­ing before he was declared dead four minutes later. 

The first lethal gas exe­cu­tion in America took place in Nevada in 1924, using a gas cham­ber and cyanide gas. The last exe­cu­tion by gas cham­ber was in 1999 in Arizona. Decades lat­er, in 2015, the Oklahoma leg­is­la­ture became the first to approve nitro­gen hypox­ia as a new method of exe­cu­tion by gas. The use of nitro­gen gas admin­is­tered through a mask replaces breath­able air in the body with an inert gas, slow­ly depriv­ing the body of oxy­gen. Supporters of this method claim it is pain­less, since a per­son can inhale pure nitro­gen with­out imme­di­ate­ly real­iz­ing any­thing is wrong: as the body’s cells and organs are starved of oxy­gen, they begin to fail, caus­ing the per­son to lose con­scious­ness and even­tu­al­ly for their heart to stop beat­ing. This nar­ra­tive was intro­duced in part by Michael Copeland, an assis­tant pro­fes­sor of crim­i­nal jus­tice, not a med­ical expert. During Oklahoma’s leg­isla­tive hear­ing to approve the method, no sci­en­tif­ic evi­dence was pre­sent­ed about the effects of forc­ing a per­son to breathe pure nitro­gen gas. Even so, the pro­to­col passed. Now, five states (Alabama, Arkansas, Louisiana, Mississippi, and Oklahoma) specif­i­cal­ly autho­rize exe­cu­tion by nitrogen suffocation. 

Despite an absence of sci­en­tif­ic evi­dence, and despite the heav­i­ly redact­ed pro­to­col giv­en to both the Supreme Court and Mr. Smith, Alabama used this method for the first time to exe­cute Kenneth Eugene Smith on January 25, 2024. Justice Sotomayor dis­sent­ed from the Supreme Court’s deci­sion to deny Mr. Smith’s request for a stay of exe­cu­tion, writ­ing that by allow­ing the pro­ce­dure to pro­ceed, the Court had per­mit­ted Alabama to ​“exper­i­ment… with human life” (quot­ing Barber v. Ivey (2023)). Since Mr. Smith’s exe­cu­tion, sev­en indi­vid­u­als have been exe­cut­ed using this method. 

The most recent exe­cu­tion using nitro­gen gas took place in Alabama on October 27, 2025, with the death of Anthony Boyd. Mr. Boyd raised an Eighth Amendment chal­lenge to this method, ask­ing the Supreme Court to allow him to be exe­cut­ed by fir­ing squad instead — a ​“fea­si­ble and read­i­ly imple­ment­ed alter­na­tive method [of exe­cu­tion] that would sig­nif­i­cant­ly reduce a sub­stan­tial risk of severe pain” com­pared to nitro­gen gas. Although the Court had before it evi­dence of sev­en oth­er men exe­cut­ed by nitro­gen hypox­ia who had expe­ri­enced what Justice Sotomayor described as ​“tor­tur­ous” exe­cu­tions, it denied Mr. Boyd’s request. 

In her dis­sent from that deci­sion, Justice Sotomayor said the Court had ​“turn[ed] its back on…the Eighth Amendment’s guar­an­tee against cru­el and unusu­al pun­ish­ment” by deny­ing Boyd’s request. She urged her col­leagues who vot­ed to deny the stay to ​“take out [their] phone, go to the clock app,” and sit for four minutes and: 

Justice Sotomayor explained that this is what Anthony Boyd would endure — up to sev­en min­utes of con­scious­ness while the state of Alabama slow­ly suf­fo­cat­ed him. Eyewitnesses report­ed that Mr. Boyd’s exe­cu­tion last­ed thir­ty-sev­en min­utes and that he appeared con­scious for near­ly half that time.