Alex Klein Publishes Article in the Northeastern University Law Review The article examines a legal test developed through a series of cases to determine whether a state’s proposed method of execution constitutes cruel and unusual punishment. 

By Law Communications
May 12, 2025

Washington and Lee law professor Alex Klein has published an article in the Northeastern University Law Review. The article, “The Eighth Amendment’s Paper Tiger: Pain, Executions, and the Cruel and Unusual Punishment Clause,” examines a legal test developed through a series of cases (Baze v. Rees, Glossip v. Gross, Bucklew v. Precythe) to determine whether a state’s proposed method of execution constitutes cruel and unusual punishment.

“Over a trilogy of cases that began with Baze v. Rees in 2008, the Court developed a test for analyzing whether a state’s proposed method of execution violated the Eighth Amendment. Under Baze/Glossip/Bucklew, a person challenging a state’s method of execution must show that the method of execution poses a severe risk of ‘superadded’ pain and suffering that can be alleviated by a readily available alternative that would substantially reduce that risk and that a state has refused to adopt the alternative without a legitimate penological reason. Despite significant evidence about pain and suffering, the Supreme Court has never held that a state’s chosen method of execution or execution protocol violates the Eighth Amendment.

“The Baze/Glossip/Bucklew test is, like many aspects of capital punishment, a contradiction. It presumably offers an objective way to determine when pain associated with executions is unconstitutional. Despite the purported centrality of pain to this test, pain is no more than a paper tiger. Setting unconstitutional pain as the Eighth Amendment standard for executions appears to offer constitutional protection to people facing executions, but it is ultimately a toothless standard. Instead, Baze/Glossip/Bucklew is a results-oriented test that evades substantive constitutional analysis and minimizes the significance of pain in favor of finality. Courts have abdicated their constitutional role by developing and applying an unworkable Eighth Amendment analysis. Even a proponent of capital punishment should recognize that there is something wrong with that,” writes Klein.

The article is available online at the W&L Law Scholarly Commons.

If you know a W&L faculty member who has done great, accolade-worthy things, tell us about them! Nominate them for an accolade.