Glossip v. Gross: The Insurmountable Burden of Proof in Eighth Amendment Method-of-Execution Claims

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Michael T. Maerowitz

Beginning in 1878 with Wilkerson v. Utah, the Supreme Court has heard over forty cases where plaintiffs alleged that a method of execution violated the Eighth Amendment’s ban on cruel and unusual punishment. Though methods of execution have drastically changed over the years, the Supreme Court has never once held that a state’s chosen procedure for executing a prisoner constituted cruel and unusual punishment in violation of the Eighth Amendment. This statistic is particularly alarming in light of the fact that The Death Penalty Information Center shows there are over forty-eight well-known “seriously” botched executions.
This Note will argue that, following Glossip v. Gross, the burden of proof for method-of-execution claims alleging a violation of the Eighth Amendment has become overwhelmingly heavy so as to circumvent the alleged safeguards of the Eighth Amendment. Accordingly, this Note will propose that for a state’s chosen method of execution to be deemed constitutional under the Eighth Amendment, the state should have the burden of proving by a preponderance of evidence that the chosen method of execution does not pose a substantial risk of harm when compared with known and readily available alternatives.

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