For as long as America has had the death penalty, questions have arisen about how best to implement it. The execution of Kenneth Eugene Smith in Alabama on Thursday, the first American execution in which death was caused by suffocation with nitrogen gas, gave no indication of resolving the legal, moral and technical questions that have long tormented states as they meted out the ultimate punishment. .
More recently, problems with the purchase, administration, and effects of lethal injection drugs have left states scrambling to find alternatives ranging from the old-fashioned—firing squads, electric chairs, and gas chambers—to untested ones, like Alabama’s use of a mask to force Mr. Smith. inhale nitrogen instead of air.
But after Mr Smith’s death, Alabama Attorney General Steve Marshall hailed the execution as a “historic” breakthrough. He criticized opponents of the death penalty for putting pressure on “anyone helping states in this process.”
“They don’t care if Alabama’s new method is humane and effective, because they know it is also easy to implement,” he said in a statement.
In 2015, Oklahoma, Mississippi and then Alabama became the first three states to authorize the use of nitrogen hypoxia during executions. Oklahoma and Mississippi specified it as a backup method if lethal injections were deemed unconstitutional or if the drugs used were no longer available. Alabama offered death row inmates the choice between nitrogen hypoxia and lethal injection.
Mr. Smith chose nitrogen after surviving an hours-long attempted execution by lethal injection in 2022, during which he was repeatedly stabbed with needles and placed in what he called a “reverse crucifixion position”. But he continued to wage a legal battle against the use of the state administration method and protocol.
Even states that have considered less common methods of capital punishment have been reluctant to use them. In 2021, the South Carolina legislature authorized execution by electric chair or firing squad, but later passed a law shielding from public view the identities of pharmaceutical companies and officials involved in the executions, making it easier to obtain the necessary medications. The state then announced it was ready to resume lethal injections.
In 2018, the head of Oklahoma’s prison system announced that the state would begin using nitrogen gas, complaining that he had spent his time on a “mad hunt” for lethal injection drugs that involved having to converse with “seedy individuals” and making calls in the “alleys of the Indian subcontinent”.
But the change never happened. In 2020, the state said it had also obtained the drugs needed to perform lethal injections. Critics said the three states authorized the use of nitrogen without adopting a protocol for its actual use. Alabama is the only state to have developed one.
At least one other state, Nebraska, is considering a bill that authorize the use of nitrogen hypoxia. Nebraska last executed a prisoner in 2018, its supply of lethal injection drugs has expired and it has no way to execute all 11 people on its death row, according to the Lincoln Journal Star.
In general, states prefer to change their existing enforcement protocols rather than try something new, said Deborah Denno, a professor at Fordham University Law School. “States will stick to the same method as long as they can, because if they change, they are admitting there was a problem,” she said.
She said it was difficult to predict whether Mr. Smith’s apparently successful execution would prompt other states to consider adopting nitrogen hypoxia. The number of executions has decreased over time, from a high of 98 in 1999 to a low of 11 in 2021.
This decrease has a variety of causes, including restrictions on the execution of cognitively disabled people, increased awareness of wrongful convictions and racial disparities, and restrictions placed by pharmaceutical companies on the use of their products.
The numbers began to rise again as states found ways to acquire lethal injection drugs or developed new protocols.
Such adjustments have already occurred. When hangings were considered slow and gruesome, and an unseemly form of public entertainment, executioners tried to improve things by using gallows instead of tree branches, and then scaffolding instead of gallows, Ms. Denno. wrote. But the efforts were “marred by conjecture and inconsistencies,” she said.
Ultimately, a New York State commission tasked with making executions more humane proposed the electric chair. His first victim, in 1890, shook for half a minute after being pronounced dead, Ms. Denno wrote.
The United States Supreme Court has never struck down a method of execution. In 2018, it set a standard that the chosen method cannot “add” terror, pain or shame, said Robin Maher, executive director of the Death Penalty Information Center. But prisoners who object to the proposed method of execution must provide a workable and easily achievable solution. alternative available, the court said.
In that 2018 case, prisoner Russell Bucklew of Missouri had previously suggested nitrogen hypoxia as an alternative but was rejected. He wasn’t the only prisoner who tried to choose nitrogen gas. In 2022, Richard Atwood, an Arizona death row inmate, asked the state use nitrogen in the gas chamber instead of cyanide. The cyanide executions were described as prolonged and agonizing. And Mr. Atwood’s mother was Jewish and had fled the Nazis, who used a form of cyanide in their gas chambers.
The state denied the request, and Mr. Atwood died by lethal injection.
Proponents of nitrogen hypoxia have called it painless and “almost perfect» method of execution. But experts, including Dr Philip Nitschke, a pioneer of assisted suicide who has witnessed dozens of deaths from nitrogen hypoxia, have warned of the risk of significant suffering if things go wrong. Opponents of the death penalty say the method is experimental and could prove dangerous for those who apply it. Nitrogen gas has caused deaths in industrial accidents and been used in physician-assisted suicides, but had never been tested in a death chamber before Thursday evening.
Although Mr. Smith’s execution appeared to have taken place without unintended consequences, opponents of the death penalty said the suffering could be difficult to watch. Autopsies of people killed by lethal injection suggested that their pain was masked, rather than reduced, by the paralytics.