In her article, “Kill ‘em With Lies: The False Narrative of the American Execution Laboratory,” in the St. Louis University Law Journal, Danica Howell maintains that the “Supreme Court’s narrative regarding capital punishment . . . . boasts the consistent development of more humane methods of execution,” but in reality, “states are not driven by the desire to create humane execution; they are merely striving to keep state-sanctioned killing alive. Examination reveals that execution methods are adopted on best guess and are retained without post-adoption verification of their effectiveness, humanity, or painlessness.” The result is that new execution methods fail, and “states resort to reinstating outdated execution methods, further evidencing their true motivations. Against this backdrop, there is properly placed skepticism of [the] humanity of the newest execution method, nitrogen hypoxia.”
Daniel Loehr adds another factor to the many reasons state killing remains an inhumane punishment in his article, “The Extravagance of Eighth Amendment Deference,” in the Georgetown American Criminal Law Review. Daniel Loehr argues that “We live in an era of extremely long prison sentences, visibly excruciating executions, and violence-plagued prisons. We also live in an era of penological judicial restraint, which manifests through the practice of deference, wherein courts put a thumb on the scale in favor of finding laws and policies constitutional.” The result, he writes, is that “courts have been reluctant to use the Eighth Amendment’s ban on cruel and usual punishments to invalidate even some of the most extreme features of our criminal legal system.”
“Death qualification [the requirement that jurors be willing to sentence a person to death to serve on a capital jury] is a seldom-discussed but insidious part of our death penalty system,” a recent report by the ACLU reveals. According to the report, “death qualification disproportionately excludes Black prospective jurors” because they “are more likely to oppose the death penalty due to the racist roots of the capital punishment system. As a result, this process disproportionately removes Black Americans from capital juries, and Black women at the highest rates of all.” In addition, this requirement means that “death-qualified juries are more likely to convict, to ignore evidence favoring life over death, to be influenced by racial bias, and to deliberate less thoroughly.”