There exists a curious truce between death penalty advocates and detractors: both sides agree that lethal injection is the appropriate means of executing this country's convicted murderers. Ostensibly, the reason for this agreement is that both detractors and supporters view lethal injection as the most "humane" means of execution. Detractors favor lethal injection because it is less painless than alternative methods, supporters because the more humane the death penalty method, the more likely the death penalty will remain constitutional. This Article will argue, however, that this alliance belies an untenable problem in Eighth Amendment jurisprudence: retribution and the evolving standard of decency have come into direct conflict with regard to methods of execution.

If the focus of the Eighth Amendment is whether a particular method of execution involves the "unnecessary or wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 174 (1976), but retribution is a constitutional rationale for the imposition of the death penalty, the logical result is an intellectual quagmire. Most illustrative of this problematic reasoning is Baze v. Rees, in which Justice Stevens wrote that "requiring that an execution be relatively painless . . . actually undermines the very premise on which public approval of the retribution rationale [for the death penalty] rests." 553 U.S. 35, 80 (2013). Baze sets a paradoxical standard that highlights the tension between retribution and the evolving standard of decency. One needs only look to the parade of horribles touted in cases like State v. Mata and Provenzano v. Moore to see the result of this Eighth Amendment tension in practice.

What is more, the tension between these competing concepts is not merely academic: as states turn to new methods of execution in light of drug shortages, questions will be raised regarding the constitutionality of those protocols. The tension between retribution and the evolving standard of decency in method of execution jurisprudence has yet to be fully explored, but will be the future of death penalty litigation. This Article will advocate for a modified test for the application of the Eighth Amendment to methods of execution, based on the concurring opinion of Justices Thomas and Scalia in Baze. Instead of focusing on the risk of harm inherent in any mode of capital punishment, the state should be required only to refrain from causing intentional or reckless harm. This line of reasoning, although not without flaws, will at least preserve the popular sentiment in the states (either for or against the death penalty) while preventing the state from causing unnecessary harm to convicted murderers.



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