[90WashLRev1313] Nothing Less than the Dignity of Man: The Eighth Amendment and State Efforts to Reinstitute Traditional Methods of Execution

INTRODUCTIONIf some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path [lethal injection] and return to more primitive - and foolproof-methods of execution . [I]f we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood.1- Judge Alex Kozinski, United States Court of Appeals for the Ninth CircuitSince the United States Supreme Court lifted the moratorium on capital punishment in 1976,2 lethal injection has been the predominant method of executing death row inmates in the United States.3 In recent years, an export ban by the European Union has made it increasingly difficult for United States prisons to procure the drugs typically used in lethal injections.4 The unavailability of lethal injection drugs has led some states to consider legislative proposals to reinstitute traditional methods of execution, including electrocution,5 firing squad,6 and lethal gas.7The efforts of these states to reinstitute traditional methods of capital punishment raise the question of whether older methods of execution still comply with the Eighth Amendment's prohibition on cruel and unusual punishments.8 The Supreme Court has not considered the constitutionality of certain traditional methods of capital punishment in well over a hundred years.9 Given the progress in science, medicine, and contemporary notions of morality and punishment, can execution methods once deemed acceptable still pass constitutional muster? This Comment argues that Supreme Court jurisprudence, particularly with respect to the Eighth Amendment's "evolving standards of decency,"10 can be used to analyze the constitutionality of the traditional methods of capital punishment. The Court has previously looked to the laws of the states to determine if a consensus exists as to which offenders are eligible for capital punishment.11 Looking again to the laws of the states, this Comment argues that the states' shift away from the use of electric chairs, gallows, gas chambers, and firing squads represents a broadening consensus against traditional methods of execution. This broadening consensus suggests that traditional methods of execution now violate the Eighth Amendment's prohibition on cruel and unusual punishments.Part I of this Comment examines the historical background and evolution of capital punishment in the United States. Part II surveys the common methods used to execute capital offenders prior to lethal injection. Part III considers the lethal injection drug shortages, which have led to proposals to reinstate traditional methods of capital punishment in several states. Part IV analyzes the constitutionality of traditional methods of execution against the framework of the Supreme Court's Eighth Amendment jurisprudence. Part V argues that states' efforts to revert to traditional methods of capital punishment do not meet the "evolving standards of decency" used by the Court to analyze Eighth Amendment issues.I. THE EVOLUTION OF CAPITAL PUNISHMENT IN AMERICAA. Capital Punishment in the ColoniesThe English colonists brought capital punishment with them when they immigrated to America.12 In the pre-incarceration era of colonial America, capital punishment was the "equivalent of prison today-the standard punishment for a wide range of serious crimes. "13 American capital punishment drew from England's "Bloody Code,"14 with colonies imposing capital punishment for a number of crimes, including murder, rape, manslaughter, robbery, burglary, theft, counterfeiting, and arson.15 Some colonies also enforced capital punishment for crimes like blasphemy, idolatry, adultery, witchcraft, and sodomy.16 Capital punishment was widely accepted in the colonies, not only for its deterrent and retributive effects, but also for its perceived ability to facilitate repentance in criminals.17In the late eighteenth century some "criminals were occasionally pressed to death, drawn and quartered, and burned at the stake. …