It is the ACLU’s position that all five current methods of execution violate the Eighth Amendment's ban on cruel and unusual punishment, which prohibits the imposition of gratuitous pain. The most commonly used method of lethal injection, now the primary method of execution, violates that prohibition by using a sequence of drugs that creates an unnecessary risk of excruciating pain. This unconstitutional practice has been facilitated by the secrecy surrounding the development and implementation of lethal injection protocols in most states.
Although lethal injection is now the primary method of execution, prisoners are executed in the United States by any one of five methods. In a few jurisdictions the prisoner is allowed to choose which one he or she prefers. There are major problems with each method.
- The traditional mode of execution, hanging, is an option still available in Delaware, New Hampshire and Washington. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off.
- Two states, Idaho and Utah, still authorize the firing squad. The prisoner is strapped into a chair and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire.
- Throughout the twentieth century, electrocution has been the most widely used form of execution in this country, and is still utilized in eleven states. The condemned prisoner is led into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness.
- The introduction of the gas chamber was an attempt to improve on electrocution but that failed as well. In 1996 a panel of judges on the 9th Circuit Court of Appeals in California (where the gas chamber has been used since 1933) ruled that this method is a "cruel and unusual punishment."
- The latest mode of inflicting the death penalty, enacted into law by more than 30 states, is lethal injection. It is easy to overstate the humaneness and efficacy of this method; one cannot know whether lethal injection is really painless and there is evidence that it is not. As the U.S. Court of Appeals observed, there is "substantial and uncontroverted evidence… that execution by lethal injection poses a serious risk of cruel, protracted death…. Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation." (Chaney v. Heckler, 718 F.2d 1174, 1983).
The state of Georgia has executed Troy Davis, despite serious concerns that he was wrongly convicted in 1989 of killing a police officer. This case makes clear that the death penalty system in the United States is broken beyond repair. It is arbitrary, discriminatory and comes at an enormous cost to taxpayers, and it must be ended.
The Case Against the Death Penalty (2011 Resource)
The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we hold that the state should not arrogate unto itself the right to kill human beings – especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people, or when it does so in an arbitrary and discriminatory fashion.
Regulating Death in the Lone Star State (2011 Report)
The state of Texas risks causing excruciating pain during executions by failing to subject a new drug it plans on using in lethal injections to expert analysis or public scrutiny, according to this report by the ACLU, the ACLU of Texas and the Center for International Human Rights at Northwestern University Law School.
Baze v. Rees (2008 Case)
A Supreme Court case charging Kentucky's lethal injection protocol violates the constitutional ban on cruel and unusual punishment by using a combination of drugs that creates an unnecessary and avoidable risk of excruciating pain.