On Jan. 25, 2024, the state of Alabama executed Kenneth Smith by nitrogen hypoxia. It was the first time in U.S. history that someone was executed this way — asphyxiating, gasping for air — after Smith lost a legal battle that made it to the Supreme Court.
What does this say about the humanity of death sentences, about the humanity of the judicial system itself? Is this method of execution a mere alternative to lethal injection or a retrogression of human rights? Does this uglier execution method display the inhumanity and indefensibility of capital punishment?
If the answer to the last two questions is affirmative, the U.S. has at least two options. The most elementary one is to prohibit nitrogen hypoxia executions and restrict new methods of execution. The most improbable one, at least in the near future, is to follow the example of over 100 countries and abolish the death penalty. Even if the answer is not that this new execution method is unacceptable and the death penalty is inhumane, the U.S. seems too willing to try new means of execution without considering the purpose behind the death penalty itself, or at least how these new means of execution might endanger one’s dignity and humanity.
The lack of critical discussion around decisions regarding the death penalty shows that the U.S. as a whole, including all three branches of government and civil society, must rethink its approach to punishment, revisit the Eighth Amendment to ponder on the justifiability of the death penalty, and be extremely conscious when making future decisions about this issue.
Nitrogen’s deadly debut
Kenneth Smith became the nation’s first recipient of this novel nitrogen gas execution method after his first execution attempt failed. Originally slated for execution in November 2022, Smith’s death warrant expired before his executioners were able to find a suitable vein for lethal injection.
Interestingly, this is not the first time an execution attempt has failed in Alabama in recent years. It can be so difficult to insert intravenous lines that since 2018 two other convicted people besides Smith have survived executions due to this issue, and in 2022 a “cutdown” was performed on another prisoner’s arm after executioners tried for hours to access his veins. This issue is likely exacerbated by the fact that the executioners are usually prison personnel, not health professionals. It is debatable whether the American Medical Association’s Code of Medical Ethics allows physicians to participate in the execution process, however, it is generally agreed within the medical community that a physician should not participate in an execution of such kind. As a result, not every state requires the presence or participation of a medical professional in executions.
After the failed first execution attempt, Smith opted to be executed via the nitrogen method rather than go through another round of lethal injection. Despite his preference for this method, the use of nitrogen gas for execution is controversial among experts. The lawyers for Alabama argued that the death would be painless and quick. However, Philip Nitschke, a pioneer in assisted suicide, affirms to have witnessed about 50 deaths due to nitrogen hypoxia, and argues that the specific way this execution was carried out could have been less distressing and painful. Indeed, Smith’s death did not take the few seconds the lawyers claimed it would. Instead, Smith had seizure-like movements for several minutes, during an agonizing process that witnesses described as “violent.”
An uncruel and usual execution?
If done correctly, death by nitrogen is quick and painless. However, if something is wrong, a botched execution can cause the recipient to suffer immensely or even remain alive with severe and permanent injuries. The Equal Justice Initiative notes that risks of this method include choking to death on one’s own vomit, brain damage, or entering a persistent vegetative state. Nitrogen execution can also potentially endanger the health and life of prison employees in the event of an undetected gas leak.
Despite a lack of evidence of the swiftness of death through nitrogen gas, the U.S. District Court for the Middle District of Alabama permitted Alabama to move forward with its plans to execute Smith. Smith’s lawyers argued that, due to how disturbing the first execution attempt was, trying to execute Smith a second time would be a violation of the Eighth Amendment, which states that “cruel and unusual punishments [shall not be] inflicted.” However, the 11th U.S. Circuit Court of Appeals dismissed their reasoning, arguing that because of the novelty of the method, it cannot be said that it will be “cruel and unusual.”
When the case was appealed to the Supreme Court, the Court ruled against intervention. Three justices dissented from the decision, including Justice Sotomayor who considered that the use of this experimental execution method turned Smith into a “guinea pig.” The subject of the first execution by nitrogen hypoxia in the U.S., and the potential recipient of an undefined array of risks, it is indeed difficult to see Smith as anything other than a “guinea pig.” This relative ease in implementing a novel, insufficiently tested execution method indicates that the U.S. might need to rethink its approach to the Eighth Amendment. This reconsideration would involve a reinterpretation of the Amendment: To avoid approving a potentially dangerous method of execution because it has not been proven to be “cruel,” the method in question should be required to be proven to be uncruel before it is adopted. That is, if executing a human being can ever be considered uncruel.
The future of the death penalty
A widespread concern about abolishing the death penalty is that doing so would result in an increase in crime rates. According to a 2021 poll by Pew Research, 35% of Americans believe that the death penalty deters people from committing serious crimes. If that is true, it would be important to have a more readily available method of execution than lethal injection. Steve Marshall, Alabama’s attorney general, suggested that the availability of an “efficient” execution method would be an adequate deterrent to criminals.
However, studies show that the severity of punishment has little impact on crime rates. Yet, the belief that the death penalty is an effective deterrent to criminals is a significant factor influencing popular support for the death penalty — 59% of U.S. citizens favor the death penalty, especially for convicted murderers, despite 78% admitting that there is some risk that an innocent person is executed. This means that people are willing to condemn someone to the death penalty even if there is a chance they are innocent or the trial was not completely fair.
Given the divide in public opinion and general lack of factual knowledge on the death penalty, if we consider that the law generally accompanies public opinion, we conclude that the law regarding the constitutionality of the death penalty seems unlikely to change soon. And unless execution by nitrogen hypoxia decidedly proves to be more dangerous than the lethal injection, this method will likely be adopted in other states. In fact, due to problems with the procedure of lethal injection and the difficulty of obtaining the lethal injection drugs, Oklahoma and Mississippi have already authorized executions by nitrogen hypoxia in cases when lethal injection cannot be used. This might open the possibility to explore other methods of execution.
Such exploration of new execution methods could lead the U.S. closer to two different outcomes. One is finding a quick and painless execution method, more readily available and safer than the lethal injection method. Another is authorizing the use of experimental and potentially dangerous methods of execution. Or, more likely, the U.S. is closer to both of these outcomes — as it discovers more cruel methods of execution, it will also find out what can be considered better alternatives. If that is the case, the US then must think if it is worth taking the risk of exploring dangerous methods to find a better alternative to lethal injection. However, none of these paths make a revisitation of the justifiability of the death penalty necessary. Judging by the back-and-forth in restrictions to the death penalty, as well as the Biden administration’s controversial decision to reverse its moratorium on federal executions and seek the death penalty against the Buffalo gunman who fatally shot 10 Black people in a racist attack, the U.S. does not appear close to abolishing the death penalty.
Alabama seems to have started a new chapter in death penalty policies, opening the doors to the implementation of novel, more accessible, and less studied execution methods. Therefore, it is more urgent than ever that the U.S. rethinks its position on the death penalty and takes a clear stance beyond whether it is legally justifiable or not. The U.S. must look beyond the law and to cases like that of Kenneth Smith in order to fully consider the humanitarian issues involved in the death penalty and the principles the country endorses when choosing to continue the practice. To answer these questions, the U.S. must ponder whether people are seeking justice or revenge, and, if fairness and popular opinion conflict, whether the judicial system should impose death sentences based on what people seek or based on what is fair. The nation must then consider the implications of such principles for the progress of justice and human dignity.
