New Analysis: In Seeking Firing Squad, Electrocution, and Nitrogen Gas Executions, DOJ Misrepresents American History and Law

On April 24, the U.S. Department of Justice (DOJ) released a report propos­ing an expan­sion of the fed­er­al death penal­ty, includ­ing adding fir­ing squad, elec­tro­cu­tion, and lethal gas as exe­cu­tion meth­ods. The DOJ char­ac­ter­izes the Biden Administration’s mora­to­ri­um on exe­cu­tions as ​“an unprece­dent­ed break from the [DOJ]’s long­stand­ing approach to the death penal­ty,” while cast­ing this new effort as a return to form. The DOJ fur­ther claims that the three alter­na­tive meth­ods of exe­cu­tion have a ​“long his­to­ry of use” and that ​“the Supreme Court has found [each] to be con­sis­tent with the Eighth Amendment.” 

However, his­tor­i­cal and legal con­text sug­gests the oppo­site is true: fed­er­al exe­cu­tions under the first Trump Administration were the excep­tion to a long peri­od of decline; most states had aban­doned the sug­gest­ed exe­cu­tion meth­ods due to con­cerns about pain and botched exe­cu­tions; and the Supreme Court has not recent­ly or mean­ing­ful­ly engaged with these troubling critiques. 

History of the Federal Death Penalty

The DOJ report offers a sim­ple time­line: between 1789 and 2021, the DOJ ​“con­sis­tent­ly upheld its oblig­a­tion to seek and imple­ment cap­i­tal sen­tences,” until the Biden DOJ ​“aban­doned its oblig­a­tion.” The data, includ­ing the DOJ’s own sta­tis­tics, shows a more complicated history. 

The fed­er­al death penal­ty was often used in the first cen­tu­ry of the repub­lic, but was dis­pro­por­tion­ate­ly applied against Black and Native American peo­ple. For exam­ple, the fed­er­al gov­ern­ment con­duct­ed a mass exe­cu­tion of 38 Dakota Sioux trib­al mem­bers in 1862. These dis­par­i­ties car­ried into the 20^th cen­tu­ry: from 1900 to 1963, 76% of fed­er­al­ly exe­cut­ed indi­vid­u­als were Black men.

Between 1963 and 2001 — near­ly four decades — the fed­er­al gov­ern­ment con­duct­ed no exe­cu­tions. For 16 of those years (1972 – 1988), there was no fed­er­al death penal­ty on the books. While the num­ber of fed­er­al death sen­tences increased from 1988 through the 1990s in tan­dem with nation­al ​“tough on crime” trends, exe­cu­tions did not match that pace. In the ear­ly 2000s, the gov­ern­ment exe­cut­ed three peo­ple before enter­ing anoth­er long peri­od of inactivity. 

In this con­text, the 13 fed­er­al exe­cu­tions con­duct­ed in the wan­ing days of the first Trump Administration devi­at­ed from the his­tor­i­cal trend, while the Biden Administration’s mora­to­ri­um fol­lowed decades of de fac­to paus­es in the pun­ish­ment. The DOJ report’s own data reveals wide vari­a­tions in the num­ber of autho­rized cap­i­tal cas­es, includ­ing dozens of sub­se­quent deci­sions to drop the death penal­ty, with a vis­i­ble decline in cap­i­tal pros­e­cu­tions over the past two decades before the start of the sec­ond Trump Administration. 

Firing Squad

To sup­port its use at the fed­er­al lev­el, the DOJ report char­ac­ter­izes the fir­ing squad as a ​“his­tor­i­cal­ly com­mon” exe­cu­tion method. While the DOJ cor­rect­ly notes that the fir­ing squad has a ​“long his­to­ry,” used as ear­ly as 1608 in the Jamestown Colony, that his­to­ry is a nar­row one. A review of American exe­cu­tions from 1608 to 1976 found only 141 shoot­ing exe­cu­tions out of 14,489 total, a mere 1%.¹ Since 1976, the fir­ing squad has account­ed for just 6 of 1664 (0.4%) exe­cu­tions. Just two states, Utah and South Carolina, have used the fir­ing squad in the modern era.

The ​“prac­tice has his­tor­i­cal­ly been more close­ly asso­ci­at­ed with the mil­i­tary than with civil­ian pris­on­ers,” the New York Times not­ed in 2025. The fir­ing squad was used on occa­sion dur­ing the American Revolution and Civil War to pun­ish sol­diers for deser­tion. According to Professor Mark Smith of the University of South Carolina, the sol­dier was typ­i­cal­ly brought in front of a crowd and blind­fold­ed, some­times even ​“sit­ting on his own cof­fin,” to cre­ate a ​“pub­lic spec­ta­cle, a vision of terror.” 

The fir­ing squad has also been marked by racial and geo­graph­ic dis­par­i­ties asso­ci­at­ed with the American West. About 40% of his­tor­i­cal civil­ian fir­ing squad exe­cu­tions were of Native Americans. Two-thirds occurred in just three states: Utah, Oklahoma, and California. All but two (92%) of the fir­ing squad exe­cu­tions in Oklahoma were of Native Americans. 

The DOJ report also pro­pos­es adop­tion of the fir­ing squad on the basis that the U.S. Supreme Court has upheld the method. Indeed, the Court found in Wilkerson v. Utah (1878) that the fir­ing squad was not cru­el and unusu­al pun­ish­ment — the first time the Court ever applied the Eighth Amendment in a cap­i­tal pun­ish­ment con­text. However, that was also the first and last time the Court direct­ly con­sid­ered the con­sti­tu­tion­al­i­ty of the fir­ing squad. The mod­ern Court acknowl­edged in 2008 that the Wilkerson Court’s analy­sis was ​“simpl[e]”: the jus­tices found it ​“safe to affirm” that cer­tain medieval tor­tures were uncon­sti­tu­tion­al, but it was oth­er­wise “[d]ifficult…to define with exact­ness” which pun­ish­ments vio­lat­ed the Eighth Amendment. Because the fir­ing squad was not as gristly as draw­ing and quar­ter­ing, embow­el­ing alive, and burn­ing at the stake, they rea­soned, it was con­sti­tu­tion­al. The Court has nev­er eval­u­at­ed the fir­ing squad under the robust ​“evolv­ing stan­dards of decen­cy” test that became the cor­ner­stone of Eighth Amendment jurispru­dence in the 20^thcen­tu­ry.²

After los­ing at the Supreme Court, Wallace Wilkerson sat before a team of men in Provo, Utah Territory, on May 16, 1879. (Utah would not become a state for anoth­er two decades.) The fir­ing squad missed his heart. He was thrown out of his chair, writhing on the ground; wit­ness­es report­ed that he yelled, ​“Oh, my God! My God! They have missed!” He bled for near­ly 30 min­utes before he was pronounced dead. 

In recent years, as states strug­gled to obtain lethal injec­tion drugs — a trend the DOJ blames entire­ly on ​“activists,” despite the fact that major phar­ma­ceu­ti­cal com­pa­nies have uni­form­ly refused to pro­vide their prod­ucts for use in exe­cu­tions — some have turned back to the fir­ing squad. Idaho became the first state to autho­rize the fir­ing squad as its pri­ma­ry method and is near­ing com­ple­tion on a new $1 mil­lion exe­cu­tion facil­i­ty. In 2025, South Carolina con­duct­ed the first fir­ing squad exe­cu­tions in 15 years; the autop­sy of one man, Mikal Mahdi, found only two of three intend­ed bul­lets, both of which missed his heart. 

Electrocution

The DOJ report sim­i­lar­ly relies on the estab­lished his­to­ry of elec­tro­cu­tion to call for its adop­tion at the fed­er­al lev­el, not­ing that it ​“has been used in the United States…since the late 1800s” and was the ​“pre­dom­i­nant method of exe­cu­tion” until 1972. The DOJ also points to the Supreme Court’s 1890 deci­sion uphold­ing the elec­tric chair, and its 1947 deci­sion autho­riz­ing a sec­ond exe­cu­tion attempt for a pris­on­er who had sur­vived a botched electrocution. 

Yet the brief three-para­graph sec­tion offers few details about that his­to­ry — most impor­tant­ly, that the Court found the elec­tric chair con­sti­tu­tion­al before it had ever been used to put a human being to death. The method was pro­posed by a den­tist in the 1880s amidst the ​“war of the cur­rents,” as Thomas Edison raced against com­peti­tor George Westinghouse to devel­op elec­tric pow­er tech­nol­o­gy. The sys­tem was test­ed on dogs and hors­es before the state of New York slat­ed pris­on­er William Kemmler as the first to die. The Supreme Court reject­ed his appeal in In re Kemmler (1890), hold­ing that “[p]unishments are cru­el when they involve tor­ture or a lin­ger­ing death,” when they are ​“inhu­man and bar­barous.” The Court affirmed the low­er court’s find­ing that the evi­dence had ​“remove[d] every rea­son­able doubt that the appli­ca­tion of elec­tric­i­ty to the vital parts of the human body…must result in instan­ta­neous, and con­se­quent­ly in pain­less, death.”³
 

The New York Times report­ed what hap­pened next under the head­line ​“Far Worse Than Hanging: Kemmler’s Death Proves An Awful Spectacle.” The first jolt only ren­dered Mr. Kemmler uncon­scious, and offi­cials were forced to wait to recharge the gen­er­a­tor. The sec­ond jolt caused his blood ves­sels to rup­ture and the area around the elec­trodes to singe. According to the Times, the ​“stench was unbear­able” and one wit­ness faint­ed while anoth­er ran from the room. The Times wrote that Mr. Kemmler became a ​“sac­ri­fice to the whims and the­o­ries of the coterie of cranks and politi­cians.” He suf­fered ​“a death so fear­ful that peo­ple through­out the coun­try will read of it with hor­ror and dis­gust,” and aca­d­e­mics and sci­en­tists who observed the exe­cu­tion ​“almost unan­i­mous­ly sa[id] that this sin­gle exper­i­ment war­rants the prompt repeal of the law.”

Nonetheless, the elec­tric chair was adopt­ed and used in hun­dreds of 20^th-cen­tu­ry exe­cu­tions, includ­ing the infa­mous exe­cu­tions of George Stinney, Sacco and Vanzetti, and the Rosenbergs. The elec­tric chair con­tin­ued into the mod­ern era of the death penal­ty, account­ing for 163 exe­cu­tions since 1972, or about 10%. Yet it declined with the advent of lethal injec­tion and new reports of grue­some botched exe­cu­tions. (The DOJ acknowl­edges only that ​“oth­er meth­ods of exe­cu­tion have since become more preva­lent.”) In the 1990s, the heads of two Florida pris­on­ers caught on fire, with flames reach­ing as high as a foot. One of them, Jesse Tafero, was still alive until the third electric shock. 

In the past decade, only five pris­on­ers have died in the elec­tric chair — 2% of all exe­cu­tions. The Georgia and Nebraska Supreme Courts have both ruled that the method is cru­el and unusu­al under their state constitutions.

As with the fir­ing squad, the Supreme Court has nev­er eval­u­at­ed whether elec­tro­cu­tion com­ports with our ​“evolv­ing stan­dards of decen­cy” under the Eighth Amendment. Indeed, its most recent deci­sion on the top­ic, Louisiana v. Francis ex rel. Resweber (1947) — which the DOJ report cites approv­ing­ly — pre­dates the devel­op­ment of that stan­dard. The DOJ also omits trou­bling details of that case. Louisiana pris­on­er Willie Francis was just 17 when he sur­vived a botched exe­cu­tion in an elec­tric chair mis­wired by a drunk­en guard and anoth­er pris­on­er. He would not be eli­gi­ble for the death penal­ty today based on his age. The Supreme Court reject­ed his plea that he should not face a sec­ond exe­cu­tion attempt and allowed the state to put him to death. 

Lethal Gas

The DOJ report argues that ​“like exe­cu­tion by fir­ing squad and elec­tro­cu­tion, lethal gas has a long his­to­ry of use as a form of cap­i­tal pun­ish­ment in the United States,” encom­pass­ing ​“hun­dreds of cas­es between 1924 and the ear­ly 2000s.” The DOJ also names lethal gas as one of the meth­ods that ​“the Court has repeat­ed­ly held…consistent with the Eighth Amendment.” While the DOJ’s claim that the Supreme Court has upheld the fir­ing squad and elec­tro­cu­tion is true, even if those cas­es have arguably grown stale, the DOJ’s asser­tion that the Court has found lethal gas con­sti­tu­tion­al is mis­lead­ing. The DOJ relies on a patch­work of denials and sum­ma­ry opin­ions to cre­ate a sheen of constitutional legitimacy. 

Like the elec­tric chair, the first lethal gas exe­cu­tion did not go as planned. A cen­tu­ry ago in Carson City, Nevada, offi­cials exe­cut­ed Chinese immi­grant Gee Jon by vapor­iz­ing cyanide acid with an elec­tric heater. Yet, as Randy Dotinga recent­ly chron­i­cled for the Washington Post, the ​“heater mal­func­tioned, and most of the acid fell as liq­uid to the floor of the makeshift gas cham­ber” (a stone bar­ber­shop on the prison grounds). Mr. Gee took six min­utes to die ​“as hor­ri­fied wit­ness­es watched his head lurch and his eyes roll upward.” Observers ​“jumped back from an out­side win­dow when they thought they smelled almonds,” and “[n]o autop­sy was per­formed out of fear that gas in Gee’s body would poison onlookers.” 

Other botched lethal gas exe­cu­tions made head­lines over the years. Several pris­on­ers who won stays of exe­cu­tion died any­way because the gas had already begun to flow. In 1983, Mississippi pris­on­er Jimmy Lee Gray repeat­ed­ly banged his head against a met­al pole and moaned, his mouth foam­ing and eyes rolling back. Officials cleared wit­ness­es from the room while Mr. Gray was still mov­ing. Researchers have also sug­gest­ed that the Nazis’ use of gas cham­bers dur­ing the Holocaust con­tributed to the method­’s decline in pop­u­lar­i­ty in the United States. Mr. Gray was one of only 11 men to die by cyanide gas after the death penal­ty was rein­stat­ed in 1976 (0.7% of all modern executions). 

Throughout this time, the Supreme Court nev­er square­ly addressed the con­sti­tu­tion­al­i­ty of the gas cham­ber. The DOJ admits in its report that the ​“Supreme Court has said lit­tle regard­ing exe­cu­tion by lethal gas,” but argues that the Court has endorsed the method by ​“repeat­ed­ly den[ying] cer­tio­rari” in cas­es chal­leng­ing it. For instance, the DOJ points to a 1983 denial of a stay in which Justices Thurgood Marshall and William Brennan dis­sent, high­light­ing dis­turb­ing sci­en­tif­ic evi­dence of cyanide’s effect on the body, while Chief Justice Warren Burger responds in a con­cur­rence that he did not believe the peti­tion­er had estab­lished an Eighth Amendment vio­la­tion. (The peti­tion­er was Mr. Gray, who went on to exhib­it the very symp­toms the dis­sent­ing jus­tices described.) The DOJ also notes a 1996 sum­ma­ry deci­sion in which the Court vacat­ed a Ninth Circuit deci­sion find­ing California’s cyanide gas method uncon­sti­tu­tion­al, in light of a new state law nam­ing lethal injec­tion the default exe­cu­tion method. The Court issued no opin­ion in either case. 

The DOJ relies on a sim­i­lar approach regard­ing nitro­gen gas exe­cu­tions. The Supreme Court has not yet ana­lyzed or upheld this nov­el method, which has been used to exe­cute sev­en men in Alabama and one in Louisiana since 2024. But the DOJ finds sup­port in the fact that the Supreme Court denied stay requests in three cas­es where the low­er courts ​“agreed…that exe­cu­tion by nitro­gen hypox­ia com­ports with the Eighth Amendment.” Those courts, how­ev­er, sim­ply applied the low­er legal stan­dard for pre­lim­i­nary injunc­tions, and did not con­duct a mer­its-based, con­sti­tu­tion­al review of the exe­cu­tion method.⁴

These cas­es do not rep­re­sent a Supreme Court eval­u­a­tion of lethal gas exe­cu­tions under the Eighth Amendment, much less the Court’s approval.

The DOJ also bol­sters its claim by argu­ing that nitro­gen gas has been ​“employed dur­ing vet­eri­nary euthana­sia.” In fact, the American Veterinary Medical Association now rejects the prac­tice because ani­mals show ​“dis­tress­ing side effects.” 

The clear­est opin­ion from any Supreme Court jus­tice on nitro­gen gas so far has come from the Court’s three lib­er­al mem­bers, who dis­sent­ed from denial of review in the case of Anthony Boyd last fall with a sear­ing cri­tique of the new method. The jus­tices sum­ma­rized wit­ness obser­va­tions in pre­vi­ous nitro­gen gas exe­cu­tions: ​“appar­ent con­scious­ness for min­utes, not sec­onds; and vio­lent con­vuls­ing, eyes bulging, con­sis­tent thrash­ing against the restraints, and clear gasp­ing for the air that will not come.” By deny­ing review, “[t]his Court thus turns its back on Boyd and on the Eighth Amendment’s guar­an­tee against cru­el and unusu­al pun­ish­ment,” they wrote. That night Mr. Boyd gasped more than 225 times for over 15 min­utes before he died. 

Conclusion

The DOJ report paints a vision of a fed­er­al death penal­ty return­ing to its roots: three exe­cu­tion meth­ods with long his­to­ries and the insti­tu­tion­al impri­matur of the Supreme Court. Yet the report gloss­es over the trou­bling real­i­ties of these exe­cu­tion meth­ods. The DOJ men­tions none of the infa­mous botched exe­cu­tions that led states and the pub­lic to reject these meth­ods, to the point that they vir­tu­al­ly dis­ap­peared after the intro­duc­tion of lethal injec­tion. Those botched exe­cu­tions include many of the indi­vid­u­als behind the Court cas­es the DOJ cites to bol­ster its claims. There exists no sol­id or recent con­sti­tu­tion­al legal foun­da­tion regard­ing these exe­cu­tion meth­ods, despite the DOJ’s best efforts.