If we're going to ban the death penalty, let's ban the death penalty. But if we're not, the debate over the particulars seems rather silly.

The framers obviously didn't intend for the 8th Amendment to be a criticism of the death penalty. Since the states are not purposefully trying to torture death penalty inmates as a means of punishment, pretty much any method should pass muster. Shoot 'em, hang 'em, toss 'em off a speeding train. Whatever. I can't buy into the pretense that death can be made 'humane'.

As a method of backdoor banning the death penalty, it's especially disreputable. Normally when a lawyer tries to game the system to get around the legislature, the judiciary is supposed to slap them down. Only in death penalty law do we seem to get these sort of Brer Rabbit rulings where judges who know perfectly well they'll get crucified for so blatantly standing up to legislative intent try to make an end run around the will of the people.

Contentious debates such as the death penalty belong in the public square - not sequestered in the courts. If you're going to ban the death penalty, fine. If you're going to retain it, fine. Just don't pretend to be concerned about implementing 'humanely' as an excuse to circumvent the law.