Jaelyn Knight is a first-year, dual degree student at American University Washington College of Law, working toward her JD and Masters in Public Administration. Jaelyn graduated from the University of Kentucky with a BA in Political Science. Her interests include criminal litigation, prisoner rights, and children and youth services.

In 2022, thirty-five percent of lethal injections went haywire due to executioner incompetence and protocol defects.[1] States face further difficulties in making lethal injection available when pharmaceutical companies refuse to sell states drugs necessary for executions. [2] The unavailability of such injections has led to state usage of alternative, more drastic methods of capital punishment by legislatures.[3] With historical arguments over the death penalty’s inhumanity, could these rising complications urge swifter consideration of its constitutionality and punitive use by states? If further legislative action should be taken, the United States may have missed an opportunity when it voted against adoption of the United Nations General Assembly’s ninth resolution for a moratorium on the use of the death penalty in the past December.[4]

While each state exercises discretion toward the enforcement of capital punishment, common law precedent has broadly set the boundaries of its application. In 1972, the United States Supreme Court in Furman v. Georgia made a landmark decision on the imposition of the death penalty as constituting cruel and unusual punishment under the eighth amendment.[5] The Court vaguely held that the death penalty was unconstitutional when applied in arbitrary or discriminatory manners, specifically being disproportionately used against minorities and the poor.[6] As a result, states were left to adjust their criminal statutes to remove these arbitrary and discriminatory applications to then reinstate the death penalty in their legislatures. Not more than four years later, the Supreme Court reinstated the death penalty in Gregg v. Georgia as a punishment that was not unconstitutional.[7] In contrast, the Court in Roper v. Simmons found the death penalty to constitute cruel and unusual punishment when used to execute juvenile offenders that were younger than eighteen when they committed the crime.[8]

Since 1991 there has been a sharp decline in the number of states that authorize capital punishment, with thirty-seven states having abolished or refrained from carrying out executions in more than a decade. [9] Other states have halted executions following the series of botched lethal injections in the last year. Alabama administered the longest lethal injection in U.S. history, taking three hours to set an IV line.[10] In Tennessee, Oscar Smith received a stay in his execution after the execution team made an “oversight” by failing to test the chemicals for impurities and contamination.[11] A South Carolina judge halted Richard Moore’s execution, deeming the methods cruel and unusual,  after the state allowed him to choose execution by firing squad as an alternative for lethal injection.[12]

When states such as South Carolina are unable to administer lethal injections because of frustration with obtaining necessary drugs, they turn to these alternative methods – e.g., execution by firing squad, electrocution, gas chamber, hanging. Though the Supreme Court has not made any particular method unconstitutional, public support of the death penalty may further decline if these methods are to become more prevalent in the absence of lethal injection. In October, sixty-four percent of Americans were found to support the death penalty for more heinous crimes, particularly murder.[13] Florida Governor Ron DeSantis proposed capital punishment as the only appropriate punishment for sexual predators who “will do whatever they can to satiate themselves at the expense of very, very vulnerable people.”[14] Alternatively, opposers have long argued against the death penalty’s inhumanity and immorality toward convicted persons. But some people now strongly oppose these alternative methods, such as firing squad, for being “barbaric” and having no place in a progressive society.[15] And while they may further argue that states should exhaust more efforts to obtain lethal injection drugs, the states feel they are left with no other option when there is high-volume manufacturer refusal.[16]

The Federal government’s stance on the use of the death penalty for federal crimes has also varied dramatically by administrative transitions. The Trump administration went on a death penalty binge, executing ten prisoners by lethal injection in the latter half of 2020 and holding a thirteenth execution five days prior to President Biden’s inauguration.[17] Trump’s Justice Department was the first to resume capital punishment after a seventeen-year lapse.[18] In a striking contrast, President Biden’s campaign included a pledge to passing legislation to abolish the death penalty, as a response to the more than 160 individuals since 1973 who had been sentenced to death and exonerated.[19] On January 4, 2021 the Federal Death Penalty Abolition Act was introduced in the House to prohibit the availability of the death penalty for federal crimes.[20] No headway has since been made under Biden’s presidency to abolish or closely examine the death penalty on the federal level, and many now question whether the administration is continuing its promise to do so.[21]

There are striking concerns with proper administration of capital punishment from various perspectives, by which its constitutionality under the eighth amendment has been the primary debate. But a lingering contradiction exists between the government’s compelling interest to maintain moral order, and a public interest to reserve some morality and humanity towards convicted individuals. With an increase in inadequately administered executions and a prospective resurgence of antiquated methods, there may now be a higher need to check the legitimacy of the death penalty to avoid further dangers and instabilities in its application.


[1] See Nicholas Bogel-Burroughs, Death Penalty Researchers Call 2022 ‘Year of the Botched Execution’, (Dec. 16, 2022), https://www.nytimes.com/2022/12/16/us/death-penalty-botched-executions.html.

[2] Laurel Wamsley, With Lethal Injections Harder to Come By, Some States Are Turning to Firing Squads, NPR: National (May 19, 2021 at 5:00 AM), https://www.npr.org/2021/05/19/997632625/with-lethal-injections-harder-to-come-by-some-states-are-turning-to-firing-squad.

[3] Id.

[4] See Helping the World Achieve a Moratorium on Executions, World Coalition Against the Death Penalty (Dec. 20, 2022), https://worldcoalition.org/campagne/helping-the-world-achieve-a-moratorium-on-executions/.

[5] Furman v. Georgia, 408 U.S. 238, 239-240 (1972).

[6] Id.

[7] Gregg v. Georgia, 428 U.S. 153, 187 (1976).

[8] Roper v. Simmons, 543 U.S. 551 (2005).

[9] Robert Dunham & Anne Holsinger, The Death Penalty in 2022: Year End Report, Death Penalty Information Center (Dec. 16, 2022), https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-year-end-reports/the-death-penalty-in-2022-year-end-report.

[10] Alabama Governor Halts Executions After Latest in Series of Execution Failures, Death Penalty Information Center (Nov. 23, 2022), https://deathpenaltyinfo.org/news/alabama-governor-halts-executions-after-latest-in-series-of-execution-failures.

[11] Nicholas Bogel-Burroughs, Tennessee Halts Executions After Failing to Test Lethal Injection Drugs, N.Y. Times (May 2, 2022), https://www.nytimes.com/2022/05/02/us/tennessee-executions-lethal-injection.html.

[12] South Carolina Legislature Authorizes Use of Electric Chair and Firing Squad as State Reaches 10 Years Without an Execution, Death Penalty Information Center (May 6, 2021), https://deathpenaltyinfo.org/news/south-carolina-legislature-authorizes-use-of-electric-chair-and-firing-squad-as-state-reaches-10-years-without-an-execution.

[13] See John Gramlich, 10 Facts About the Death Penalty, Pew Research Center, (July 19, 2021), https://www.pewresearch.org/fact-tank/2021/07/19/10-facts-about-the-death-penalty-in-the-u-s/.

[14] Gov. DeSantis Backs Death Penalty for Child Rapists, Florida Business Review Online (Jan. 27, 2023).

[15] See Executions Halted In South Carolina Amid Challenges to Constitutionality of Firing Squad and Electric Chair, Death Penalty Information Center: News (Apr. 26, 2022), https://deathpenaltyinfo.org/news/executions-halted-in-south-carolina-amid-challenges-to-constitutionality-of-firing-squad-and-electric-chair.

[16] Laurel Wamsley, With Lethal Injections Harder to Come By, Some States Are Turning to Firing Squads, NPR: National (May 19, 2021 at 5:00 AM).

[17] See Joe Davidson, President Trump’s expensive death penalty binge could continue next week, Washington Post: Politics (Jan. 9, 2021, 6:00 AM), https://www.washingtonpost.com/politics/trump-death-penalty-costs/2021/01/08/63aa3fe0-5120-11eb-b2e8-3339e73d9da2_story.html.

[18] See Josh Gerstein, Trump administration carries out first federal execution in 17 years, Politico: Legal (July 14, 2020, 7:13 PM), https://www.politico.com/news/2020/07/14/supreme-court-federal-execution-injunction-360490.

[19] Joe Biden (@JoeBiden), Twitter (July 25, 2019, 5:14 PM), https://twitter.com/JoeBiden/status/1154500277124251648.

[20] Federal Death Penalty Abolition Act, H.R. 97, 117th Cong. (2021).

[21] See Mark Osler, Biden’s making a troubling U-turn on the death penalty, The Hill: Opinion (Oct. 19, 2022, 5:30 PM), https://thehill.com/opinion/white-house/3695874-bidens-making-a-troubling-u-turn-on-the-death-penalty/.