Washington Law Review


While lethal injection is the predominant method of executing death row inmates in America, European export bans and pharmaceutical manufacturers’ refusal to supply execution drugs has impeded the ability of states’ departments of corrections to obtain the drugs used for lethal injections. Facing a drug shortage, several death penalty states have considered legislation to reinstate the use of electric chairs, firing squads, and gas chambers. Efforts to restore traditional methods of capital punishment raise questions about whether such methods still comply with the Eighth Amendment’s prohibition against cruel and unusual punishments. The Supreme Court has observed that the Eighth Amendment is not static, but draws its meaning from society’s “evolving standards of decency.” To assess these evolving standards, the Court previously has looked to state laws to determine if a national consensus exists with respect to who is eligible for capital punishment and by what means states carry out death sentences. States have moved away from traditional methods of capital punishment. This trend suggests the traditional methods of capital punishment have fallen out of favor and can no longer withstand Eighth Amendment scrutiny.

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