Hastings Constitutional Law Quarterly


Peter S. Adolf


Although people have debated the wisdom of the death penalty for centuries, little attention has been paid to the actual killing process. With the pace of executions in the United States increasing dramatically in recent years, courts have begun to grapple with the question of what the government can and cannot do in the process of lawfully killing someone. The decisions have been illogical and contradictory: at the time of this writing, hanging is permissible in Washington State and Montana, while California's gas chamber is unlawful "cruel and unusual punishment." The Supreme Court has never decided what the permissible limits of cruelty in the death chamber might be, or even articulated what criteria the lower courts should use to decide the issue.

After examining the history of Eighth Amendment jurisprudence, as well as the mechanics and drawbacks of the given methods of execution currently in use in America, this Note proposes a three-step inquiry into whether a particular method is "cruel and unusual." First, one must select the other methods against which to judge the method in question. Second, and perhaps most difficult, one must assess each method's cruelty relative to the others, examining the different ways each violates "human dignity"-a concept the Note examines in great detail. Finally, looking at the newly ranked methods, one must decide where to draw the line on the spectrum of cruelty between the permissible and impermissible way of killing. In analyzing this last step, the Note examines the current prevailing view of the Eighth Amendment, as well as the historical interpretation favored by the Supreme Court's conservative wing.

This Note concludes that of all the lawful killing methods in use today, the gas chamber is the most vulnerable to constitutional attack, whatever the mode of Eighth Amendment interpretation; and that if there are any limits left on what the State may do to a condemned prisoner in the process of killing her, death by cyanide gas is beyond those limits.