“It’s way too early to know whether states will increasingly look to nitrogen gas as an alternative to lethal injection, but Alabama’s recent experience suggests that nitrogen is not the answer,” Eric Berger writes in the blog, Dorf on Law. Berger points out the “conflicting reports” about Alabama’s execution of Kenneth Smith by nitrogen hypoxia last month — state officials boasted it was “humane and effective” while reporter Lee Hedgepeth, a witness, wrote in his newsletter, “Tread,” Smith was “thrashing against the straps, his whole body and head violently jerking back and forth for several minutes” — and concludes, “The disconnect between Alabama’s and the media’s accounts of Mr. Smith’s death is a microcosm of American executions for decades.” (Last week, an Alabama man on death row filed a federal lawsuit challenging the constitutionality of nitrogen hypoxia as an execution method. You can read that story in our newsletter here.)
Richard Dieter, an attorney who served as the Executive Director of the Death Penalty Information Center for 23 years, writes in Medium, “What is most troublesome” about the U.S. Supreme Court’s decision not to hear Kenneth Smith’s case and review the unique legal issues it presented, “is that the Court did not even deem these issues worthy of a full and open review.” He argues that “A new method of execution by a state that has repeatedly and abysmally failed in applying its older method merits more scrutiny than mere deference to the state from the majority of the Court. And subjecting a prisoner to repeated attempts at execution should, at a minimum, require extraordinary justification.”
In his Washington Post editorial, “The death penalty: An American sickness that just won’t die,” Robert Gebelhoff also writes about the recent execution of Kenneth Smith and states that ADOC Commissioner John Hamm’s declaration that the agonizing death was nothing “out of the ordinary” would be valid “if you find the state killing of citizens ordinary.” Gebelhoff points to all of the false arguments for supporting state killing, e.g., that it deters crime, that it’s less expensive than keeping the convicted in prison, that it is possible to kill people humanely, that it brings peace to victims’ families, and says this “oversimplified view of justice” is a “sign of a deeper sickness that makes a mockery of the principle that all life is sacred.”
In her essay, “‘An ‘Execute-Them-At-Any-Cost Mentality:'” The Supreme Court’s New, Bloodthirsty Era, in Politico Magazine, USF School of Law Professor Lara Bazelon says the downward trend in death sentences that began after hitting a peak in the mid-1990s, “is beginning to reverse.” She notes that in 2021, there were 11 executions in the U.S. and one year later, in 2022, there were 18. In 2023, there were 24 people executed, the highest in five years. The reason for the increase? According to Bazelon, it’s because of the conservative supermajority appointed to the Court by former President Trump. Trump appointees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, in lockstep with John Roberts, Clarence Thomas, and Samuel Alito, “are far more likely to propel an execution forward than intercede to stop it, including in cases where guilt is in doubt or where the means of carrying it out could result in a grotesque spectacle of pain and suffering.”
In his essay, “White Man’s Justice Is Black People’s Grief: A Black History Month Truth,” Kevin Cooper, a Black man who has been on California’s death row for 39 years, writes that, “Black history has a companion that has walked hand in hand and side by side throughout the tortured history of Black people in America. This companion is what white Americans have used nonstop against us in this land from 1619 to 2024. This companion — capital punishment — has never left us. Never. Why? Because this is a very real part of white man’s justice, and history has proven that whenever there is white man’s justice, there is Black people’s grief — and death.”
