The Eighth Amendment prohibition on cruel and unusual punishment stands as one of the most noble constitutional protections, recognizing the dignity and humanity of all individuals, even those convicted of heinous crimes. However, in recent years, conservative judges have eroded this principle by tying it to the views of the framers from over two centuries ago, particularly in death penalty cases.
This erosion is starkly evident in the conflicting rulings over Alabama's nitrogen hypoxia protocol. On May 28, federal district judge Emily Marks upheld the method, comparing it favorably to barbaric executions like drawing and quartering. Just days later, the 11th Circuit Court of Appeals found nitrogen hypoxia to be unconstitutionally painful, blocking the execution of Jeff Lee, scheduled for June 11. Judge Marks then allowed Alabama to pursue lethal injection or the electric chair instead.
The Cruelty of Nitrogen Hypoxia
Nitrogen hypoxia kills by depriving the body of oxygen. Contrary to claims of a quick, painless death, eyewitness accounts describe visible suffering for several minutes before loss of consciousness, including profound respiratory distress. Professor Damian Bailey noted that these testimonies challenge the narrative of a humane death.
The Supreme Court, however, has made it difficult to challenge execution methods. Since 2008, the standard requires proving a substantial risk of serious harm that is objectively intolerable, and the burden is on the challenger to propose a less painful alternative. Some originalists like Clarence Thomas argue a punishment is only cruel if it was considered so at the time of the Eighth Amendment's adoption.
Conflicting Judicial Interpretations
Judge Marks applied this originalist view, concluding that only punishments like burning at the stake or crucifixion are prohibited, and that nitrogen hypoxia is an enviable way to die despite causing severe pain. The 11th Circuit disagreed, ruling that the one-to-three minutes of suffering presents a substantial risk of serious harm beyond death itself, calling it constitutionally intolerable.
This case is a watershed moment for nitrogen hypoxia, an approved method in five states but used only in Alabama and Louisiana. The appellate decision reminds us that the quest for a humane execution method remains fraught. The judicial ping-ponging in Lee's case underscores the Eighth Amendment's uncertain fate under judges eager to grant states wide latitude in imposing the ultimate punishment.
