Another state-sanctioned murder should not be tolerated: botched or not. On September 30th, 2026, Tennessee intended to execute Christa Pike.[1] Complications with the insertion of Pike’s IVs caused the pentobarbital to flow into her body causing “blisters on her arms from the bleach–like, caustic substance.”[2] This was Tennessee’s second botched execution in four months.[3]

1. Legal Background

Baze v. Rees is recognized as the controlling case for considering challenges to execution methods.[4] In Baze v. Rees, the Supreme Court considered the merits of Kentucky’s procedures for effecting corporal punishment.[5] Kentucky used a three-drug combination of thiopental, pancuronium bromide, and potassium chloride—the same combination that Tennessee uses.[6] Kentucky also required the insertion of the IV catheters to be done by qualified personnel with at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman.[7]

The Court begins from the premise that since capital punishment is constitutional, “[i]t necessarily follows that there must be a means of carrying it out. Some risk of pain is inherent in any method of execution—no matter how human . . . the Constitution does not demand the avoidance of all risk of pain in carrying out executions.”[8] The Court continues its constitutional inquiry by establishing that the Eighth Amendment was intended to prohibit the “deliberate infliction of pain for the sake of pain,” but not an execution.[9]

In deciding whether a method of execution is constitutional, courts first calculate the risk of the method. To challenge the method of execution, a plaintiff must establish that the method is “sure or very likely to cause serious illness and needless suffering,” and the danger must be “sufficiently imminent.”[10] The court provides the guidance that the risk must be “objectively intolerable”[11] Furthermore, “an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a ‘substantial risk of serious harm.’”[12] Additionally, the risk must be “substantial when compared to the known and available alternatives.[13]The court notes the high bar that the standards set.[14]

Secondly, the Court in Glossip held that it was a requirement that a plaintiff must identify “a known and available alternative method of execution that entails a lesser risk of pain” to succeed on an Eighth Amendment claim.[15] The alternative “must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.”[16]

2. It is not necessary that there be a means of carrying out an execution. 

I start where the Court did but make an opposite assertion: there does not need to be a means of carrying out an execution. Over one hundred years ago, the Court announced in Prout v. Starr that “[t]he Constitution of the United States, with the several amendments thereof, must be regarded as one instrument, all of whose provisions are to be deemed of equal validity.”[17] One grant of power to the Government by the Constitution does not nullify another.[18] Yet, this is the effect of the Baze analysis on the Eighth Amendment.  In Gregg v. Georgia, the Court upheld capital punishment, in part, because it was contemplated by the Constitution in the Fifth and Fourteenth Amendments.[19] The Court in Baze accept this reasoning that there must be a way to carry out capital punishment.[20] Therefore, the Court required that to succeed under the Eighth Amendment, a plaintiff must provide an alternative form of execution.[21] This does not give the protections of the Eighth Amendment and the constitutionality of capital punishment “equal validity.”[22] Rather, the Court has denied Plaintiffs the full protection of the Eighth Amendment by constraining it with a mere contemplation of the Constitution. A denial that the Court is not allowed to make.

Furthermore, by allowing for the constraining of the Eighth Amendment, the Court has undermined a defining feature of the Bill of Rights. In discussing James Madison’s understanding of the Bill of Rights, former Justice Hugo Black states, “It is my belief that there are ‘absolutes’ in our Bill of Rights, and that they were put there on purpose by men who knew what words meant, and meant their prohibitions to be ‘absolute.’”[23] Black describes an absolute as “deny[ing] all power to do some things under any and all circumstances.”[24] However, the Court has turned the Eighth Amendment from an absolute into an uncertainty. The government is not denied all power to inflict “cruel and unusual” punishment. Even if the plaintiff can prove that an act has an “objectively intolerable” risk of harm, and therefore, “cruel and unusual,” a plaintiff is not guaranteed to succeed on their claim.[25] The requirement of providing an alternative method of execution denies individuals of the absolute protection of the Eighth Amendment. The Constitution does not allow this.[26] The only absolute of the Eighth Amendment is a plaintiff’s execution date.

3. Court should only apply the first prong of the test.

It is inescapable that societal norms are to be consulted when analyzing if something is cruel or unusual. As the Court established in Trop v. Dulles, “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”[27] Furthermore, the scope of the Amendment is not static and “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Therefore, the Court should remove the requirement that plaintiffs offer an alternative and only ask whether the execution method poses “an objectively intolerable risk of harm.”[28]

Looking at current societal standards, the question of objectively intolerable risk of harm becomes much closer. In Baze, the Court rejected that lethal injection was “objectively intolerable” because thirty-six states have adopted it as their method of capital punishment.[29] However, this is no longer the case. Currently, twenty-three states have chosen to abolish capital punishment.[30] Of the twenty-seven that have active death penalty statutes, four of them have gubernatorial moratoriums in place prohibiting executions.[31] Another three are in de facto moratoriums because of judicial disapproval of the three-drug combination used in the states.[32] That leaves twenty states using lethal injections compared to the thirty-six in 2008.[33] Several of these states have not carried out an execution in nearly a decade.[34] Yet, among states that do actively carry out executions, all of them have authorized the use of lethal injection. However, the analysis should not consider whether lethal injection is the best available method. Instead, it should ask whether society finds it objectively intolerable. From this perspective, suddenly the twenty states that allow lethal injection are dwarfed by the thirty states that do not. Not only in finding lethal injections intolerable, but society is reflecting that capital punishment is objectively intolerable. Therefore, capital punishment should be found to be cruel and unusual under the Eighth Amendment. It is difficult to regard a practice as objectively tolerable when it is in fact widely intolerable.[35]

4. Conclusion

The Constitution guarantees absolutes.[36] However, by creating a test that requires plaintiffs to prove an alternative means of execution to be successful on an Eighth Amendment claim, the Supreme Court has denied plaintiffs the full protection of the Eighth Amendment. When given a chance, the Court should realign its jurisprudence with the Constitution to simply consider whether the death penalty is “objectively intolerable”. The Court is likely to find that society has evolved and the law should too.