Sanctioning a State Execution: Firing Squads and the Eighth Amendment

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On October 8th of 2026, the US Pentagon announced that Nidal Hasan, convicted perpetrator of the 2009 mass shooting at the Fort Hood military base, would be publicly executed by firing squad on December 3, 2026. Seeking a symbolic delivery of justice, President Trump and US Defense Secretary Pete Hegseth reasoned that an execution of this nature would serve as an example of the administration’s stance on “these types of things,” meaning terroristic attacks on the US military. While Trump announced on October 15 that the event’s livestream would be called off, Hasan’s execution will still proceed in the manner as planned, with only the families of the victims able to view the event in person if they wish. The intention to livestream Hasan’s execution garnered criticism worldwide, including from human rights groups such as the United Nations. The Trump administration’s approval of a firing squad execution raises alarm bells concerning constitutionality. Firing squad executions remain technically constitutional due to the 1878 Supreme Court case Wilkerson v. Utah, which upheld a Utah statute allowing anyone sentenced to capital punishment to “suffer death by being shot, hanged, or beheaded.” However, in analyzing both the holding in Baze v. Rees, a 2008 ruling on lethal injection administration and the Eighth Amendment, as well as a recent botched firing squad execution in South Carolina, Nidal Hasan’s execution and firing squads writ large ultimately demonstrate violations of an individual’s protections against cruel and unusual punishment.

Handed down nearly 150 years ago, Wilkerson v. Utah made firing squad executions legal in the United States. Baze v. Rees, however, allows a more contemporary insight into death penalty ruling that assists in litigating the constitutionality of Nidal Hasan’s planned firing squad execution. Though assessing the constitutionality of a lethal injection execution, Baze’s propositions regarding the thresholds for cruel and unusual punishment are significantly helpful in analyzing the constitutionality of the firing squad. The Court heard this case after its initial decision by the Kentucky Supreme Court, answering the core question of whether the state’s non-standard use of a four-drug lethal injection process amounts to a violation of an individual’s Eighth Amendment right. The Court affirmed the lower court’s holding that this process, though potentially leading to significant pain in the case of maladministration, does not constitute cruel and unusual punishment because it does not “create substantial risk of wanton an unnecessary infliction of pain, torture or lingering death.”  The majority opinion held that cruel and unusual punishment only pertains to “substantial” or “intolerable risk,” not an isolated mishap alone, but rather characterizing the nature of the execution method.

Baze sets a bar for Eighth Amendment violations involving the death penalty that necessitates a substantial risk of serious harm, more so than the mere chance of an execution being performed improperly. However, firing squad executions create a margin for error far greater than those described in Kentucky’s four-drug lethal injection process. As indicated in Baze, failing to provide a proper dose of sodium thiopental while administering lethal injection creates a “constitutionally unacceptable risk” of causing an individual to suffocate. However, the Court held that Kentucky’s entire process is not unconstitutional because lethal injection administrators’ assumed qualification does not create enough risk of maladministration occurring. In firing squad executions, the matter of “maladministration” becomes far more complicated. Here, the ability to meet the requirements of a ‘humane’ execution is significantly more difficult than simply knowing how much of a dosage to administer, making the risk of significant pain and “lingering death” greater. 

This risk is made clear in the botched April 11 firing squad execution of Mikal Mahdi in South Carolina. After an autopsy, it became evident that Mahdi suffered for an extended period before dying, corroborating witness accounts that he was alive and reactive “longer than intended or expected.” Though the three-person firing squad sought to strike Mahdi’s heart, they damaged internal organs instead while his heart kept beating, leaving Mahdi likely conscious and in pain for thirty to sixty seconds after being shot. Exemplifying this case’s divergence from the holding in Baze, ostensibly qualified individuals’ failure to properly administer the manner of execution led to Mahdi experiencing extended pain. The presence of only two bullet holes on Mahdi’s body, pointing to the possibility of one shooter missing him completely, further emphasizes the degree of maladministration. This execution represents not only an “isolated mishap” as elucidated in Baze, but a flaw in the method of execution, based on a considerably large margin for human error, baked into the firing squad’s nature.

Baze does not specifically outline the threshold for Eighth Amendment violations and the firing squad. However, holding about what constitutes cruel and unusual in a method of execution highlights helpful considerations about risk of significant suffering and extended pain in death penalty administration. Thus, under these pretenses, the elevated need for precision present in firing squad executions brings their viability into question. The Trump Administration’s decision to execute Nidal Hasan by firing squad at Fort Hood, especially coupled with the initial livestream announcement, point to a baseline desire for symbolism and spectacle. Secretary Hegseth’s dedication to revamping the US military with deployment of “warrior ethos,” along with the administration’s broader expansion of militarism, fold into this administration’s driving penchant for displays of power. This attempt to reinforce Hasan’s degree of punishment falls in line with this narrative, at the same time infringing on Hasan’s Eighth Amendment protections.

An analysis of Baze v Rees’ majority holding affirms that, despite the technical legality of firing squad executions, this method embodies cruel and unusual punishment in its high capacity to result in substantial and extended suffering. Furthermore, as Justice Stevens highlights in his concurring opinion, Baze’s decision calls into question the greater viability of the death penalty under constitutional law. This ruling pulls back the curtain on the difficult thresholds regarding “substantial risk,” the sprawling possibilities of maladministration, and the impossibility of guaranteeing a painless execution in its ‘inherent-pain’ concession. Additional suffering outside of the bounds of an individual’s sentence to capital punishment creates trouble with analyses of Eighth Amendment violations.

Sinclair Harris is a senior studying History and International & Public Affairs. She is a staff writer for the Brown Undergraduate Law Review and can be reached at sinclair_harris@brown.edu.

Connor Swenson is a senior at Brown studying Political Science. He is a staff writer for the Brown Undergraduate Law Review and can be reached at connor_swenson@brown.edu.

Michaela Hanson is a junior at Brown studying Economics and English, and can be reached at michaela_hanson@brown.edu.