Since the reinstatement of the death penalty in 1976 by the Supreme Court in Gregg v. Georgia, over 83% of those executed have been put to death by means of lethal injection, which is intended to be more humane than other methods of capital punishment. The prevailing lethal injection procedure has been challenged by the contention that the first drug does not adequately anesthetize the condemned prisoner in the three‐drug sequence. Because the first drug, the sedative, may not function as intended, the second and third drugs may result in excruciating pain to the prisoner. The US Supreme Court, in Baze v. Rees (2008 Baze v. Rees, US Supreme Court Docket No. 07‐5439. Slip Opinion, decided April 16, 2008 [Google Scholar]) has held that because this process is not intended to cause unnecessary pain and suffering, it is not ‘objectively intolerable’ and is not a violation of the Eighth Amendment prohibition against cruel and unusual punishment. However, the Eighth Amendment is only a minimum standard. The court observed that states have been changing and revising execution methods for well over a century and expected that they would continue to do so without a Supreme Court mandate. The states should exercise their Constitutional duty and address and resolve the issues raised by Baze.