skip to main content

On Executions and the Eighth Amendment


The name William Kemmler doesn’t ring a bell for most people. Kemmler, a New Yorker, was the first inmate in the nation to be put to death in the electric chair. The year was 1890.

According to some of those who witnessed the execution, Kemmler’s body caught fire from the two massive jolts of electrical current, revolting many in the room and leading George Westinghouse to comment that it would have been more humane to have killed him with an axe.

Deborah Denno, Ph.D., the Arthur A. McGivney Professor of Law, has done extensive research on lethal injection and has emerged as leading critic of the procedure. Photo by Chris Taggart

As a law clerk in 1990, Deborah Denno, Ph.D., the Arthur A. McGivney Professor of Law, was fascinated with the details of the gruesome case as it applied to the Eighth Amendment, known as the cruel and unusual punishment clause. The amendment protects prisoners from punishments characterized as “patently unnecessary,” or “degrading to human dignity.”

“[Kemmler] was basically butchered,” said Denno, who at the time was doing research on the history of the Eighth Amendment. “And I found out that inmate electrocution, in 1990, wasn’t that much different than it was in 1890. That started to bother me and the issue suddenly became huge for me.”

Denno’s research on Kemmler and the nation’s use of electrocution throughout the 20th century led to an article, published in the William and Mary Review of Law in 1994, in which she argued that electrocutions amounted to cruel and unusual punishment. The article, “Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death Over the Century,” drew the attention of defense attorneys for its detailed research and its application of the Eighth Amendment.

The defense attorneys promptly cited her research in court cases. Within a year of the article’s publication, Denno said, four states changed their methods of execution from electrocution to lethal injection.

Denno’s research has
uncovered a tangle of
irregularities and sloppiness
in administering the lethal injections.

Denno thought that her research on the death penalty and the Eighth Amendment had come to a conclusion, but lethal injection, she soon discovered, was not the answer, either.

As the standard method of execution in all but one of the 38 states that have a death penalty, lethal injection typically consists of combining three drugs in sequence to kill a person. First, sodium pentothal is administered to render the inmate unconscious, then pancuronium bromide is injected to paralyze all the muscles. Finally, a dose of potassium chloride stops the heart.

The three-part procedure has the potential to be effective if performed correctly by highly experienced executioners. Denno’s research, however, has uncovered a tangle of irregularities and sloppiness in administering the drugs. The American Medical Association does not sanction doctors taking part in the procedure, so injections are mostly performed by untrained or improperly trained personnel, Denno’s research has found.

And experts have testified that the administration of pancuronium bromide or similar paralyzing drugs can mask whether or not the sodium pentothal has effectively rendered the person unconscious.

Denno, who saw her research gobbled up by lawyers who used it to defend their clients, began testifying as an expert witness.

“The first time I testified in Texas, one of the attorneys said, ‘This barely passes the laugh test,’” Denno said. “To them, it seemed like a joke, and nobody was going to care about the amount of pain inmates go through; after all, we are talking about someone who [might have]just killed and raped a child. But when [my research]started getting into courts, it had an impact attorneys didn’t expect.

“A lot of the death penalty litigation applies a subjective argument, like ‘are jurors biased’ or ‘is there racism in the system,’ which is always hard to prove,” she said. “But my research is largely objective information. We can show that chemicals are given, and that they’re the wrong chemicals, or that they’re given in the wrong amounts, or that the people giving them are not trained. There’s not a lot of room for argument against it.”

In 2002, Denno published an article in the Ohio State Law Journal on the execution protocols in the 38 death penalty states, along with lists and descriptions of botched executions. She quoted directly from eyewitness accounts of executions: “two minutes into the execution. . . the syringe came out, spewing deadly chemicals toward startled witnesses” or “machine used to inject lethal dosage malfunctioned.”

Today, Denno is one of the nation’s leading experts on lethal injection, widely quoted in the press.

“What motivatesme to do academic work on methods of execution is that it may be useful,” she said. “Attorneys are out there managing big dockets of clients, they don’t have the resources to do this but I do.”

The death penalty, Denno said, presents a fundamental quandary for a society as it wrestles with how to find a standard of decency. She would like to see a nationwide moratorium on executions until a commission of experts can establish national standards for administering lethal injections or other methods, one that involves the use of doctors or perhaps trained executioners.

“Lethal injection is not something that is happening in a hospital, it is a punishment that takes place in a prison,” she said. “And almost every aspect of that punishment ensures that there are going to be flaws in the method of execution. Almost every aspect of the procedure—by virtue of it being a punishment—makes it difficult to make humane.

“That is the challenge.”


Comments are closed.