The Eighth Amendment states, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[i] For many years, advocates against the death penalty have asserted that capital punishment violates the Eighth Amendment.[ii] To advance their argument, advocates argue that the methods used to carry out the executions are cruel and unusual punishment.[iii] Some of the methods of execution include hanging, firing squad, electrocution, gas chamber, and the most commonly used lethal injection.[iv] Although death by gas chamber has been an option in many states, it had never been used in the United States—until January 25, 2024.[v] Alabama became the first state to execute an inmate using nitrogen gas.[vi] Indeed, as advocates noted, the use of nitrogen gas to carry out executions is cruel and unusual punishment; however, the United States Supreme Court, disappointingly but unsurprisingly, disagrees.
The Supreme Court has provided states with some guidelines to follow when choosing how to carry out capital punishment. However, the Court has never held that an execution method violates the Eighth Amendment as cruel and unusual punishment.[vii] According to the Supreme Court, to prevail on a claim challenging the constitutionality of an execution method, the prisoner has the burden of proving that “the State’s [execution] protocol creates a demonstrated risk of severe pain. [And] [h]e must show that the risk is substantial when compared to the known and available alternatives.”[viii] This high burden has never been met.[ix]
The methods chosen by Alabama to execute death row prisoners are lethal injection, nitrogen hypoxia, or electrocution.[x] The default method is lethal injection unless the prisoner selects nitrogen hypoxia or electrocution.[xi] In November 2022, Kenneth Smith (“Smith”) had his first execution by lethal injection scheduled. Yet after Alabama’s execution officials failed to set IV lines for the lethal injection, they stopped the execution, and Smith lived.[xii] Afterward, Smith chose to be executed with nitrogen gas instead of lethal injection due to a developed fear of needles caused by the first botched execution.[xiii]
Smith challenged his execution on several grounds, including that it violated the Eighth Amendment ban on cruel and unusual punishment.[xiv] Specifically, Smith argued that:
His execution would expose him to a “severe risk of a persistent vegetative state, a stroke, or the painful sensation of suffocation, i.e., superadded pain.” To satisfy his legal burden, Mr. Smith also identified “feasible and readily implemented alternatives” that would reduce the risk to him, either by amending Alabama’s protocol or by executing him by firing squad.[xv]
Nonetheless, U.S. District Judge Austin Huffaker ruled against him.[xvi] Judge Huffaker reasoned that although the method is new, “‘novel methods of execution are not new to the federal courts,’ and that the presence of novelty in an execution method could not and should not alter Smith’s ‘burden of showing that the method creates an unacceptable risk of pain.’”[xvii] Smith took his constitutional challenge to the Supreme Court; unsurprisingly, the Court did not halt the execution.[xviii] However, three justices dissented.[xix]
The Alabama execution protocol that the Justices approved explains that the prisoner will be strapped to a gurney, then a mask will be placed on the head, and nitrogen will be released into it, depriving the inmate of oxygen.[xx] Alabama’s Attorney General stated that the execution would be painless and that the nitrogen gas would cause unconsciousness within seconds and death within minutes—however, that was not the case.[xxi] Smith’s execution took around twenty-two minutes, and those who witnessed it stated that Smith appeared conscious while shaking and thrashing on the gurney, occasionally pulling against the restraints and heavily breathing until he passed away.[xxii]
The United Nations expressed concerns regarding the use of nitrogen in executions, noting experts’ warnings that “experimental executions by gas asphyxiation – such as nitrogen hypoxia – will likely violate the prohibition on torture and other cruel, inhuman, or degrading punishment.”[xxiii] The concern about using nitrogen gas has even been considered by the veterinarian community, who deemed the method unacceptable to euthanize animals.[xxiv] Against this backdrop, the question then is how is it justifiable to subject a human being to this inhumane death? However, several states—along with a majority of justices in the Supreme Court—seem to believe that nitrogen hypoxia is not a cruel and unusual punishment, including Ohio, which has recently introduced a bill to allow executions by nitrogen gas.[xxv]
The use of nitrogen gas as a new alternative for executions comes after states have encountered roadblocks in procuring the lethal drugs for lethal injections.[xxvi] Several pharmaceutical companies, such as Pfizer, have refused to supply lethal drugs.[xxvii] Nonetheless, instead of using the supply shortage to discuss whether the death penalty should remain, some states seem determined to keep it alive, especially the Southern states.[xxviii]
Twenty-three states have abolished the death penalty, and out of the twenty-seven that still have it in place, fourteen have not executed anyone in the past ten years.[xxix] With the death penalty’s popularity in decline and the new unexperimented methods of executions, it is time for our justice system to rethink what constitutes cruel and unusual punishment and to get away with the high burden placed on prisoners challenging their execution method. Certainly, deliberately taking a life in the name of justice with untested methods—that are not even implemented when putting animals down due to high distress—is cruel and unusual punishment.
[i] U.S. Const. amend. XIII (emphasis added).
[ii] See The Case Against the Death Penalty, ACLU (Dec. 11, 2012), https://www.aclu.org/documents/case-against-death-penalty (“The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law.”).
[iii] See The Case Against the Death Penalty, supra note ii (stating that the execution methods used in the United States “are inherently cruel and will always mock the attempt to cloak them in justice.”).
[iv] See Methods of Execution, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/curriculum/high-school/about-the-death-penalty/methods-of-execution (last visited Feb. 19, 2024) (describing in detail the five execution methods used in the United States).
[v] See Elizabeth Wolfe et al., Alabama Carries Out First Known Execution With Nitrogen Gas in the US. Now the State’s AG Expects More States to Follow, CNN (Jan. 26, 2024, 6:58 PM), https://www.cnn.com/2024/01/26/us/alabama-execution-nitrogen-what-we-know/index.html.
[vi] See “The World is Watching”: Witnesses Report Kenneth Smith Appeared Conscious, “Shook and Writhed” During First-Ever Nitrogen Hypoxia Execution, Death Penalty Info. Ctr. (Jan. 26, 2024), https://deathpenaltyinfo.org/news/the-world-is-watching-witnesses-report-kenneth-smith-appeared-conscious-shook-and-writhed-during-first-ever-nitrogen-hypoxia-execution (“On January 25, 2024, Alabama executed Kenneth Smith using nitrogen hypoxia, a first in American history.”).
[vii] See Glossip v. Gross, 576 U.S. 863, 869 (2015) (quoting Baze v. Rees, 553 U.S. 35, 48 (2008)) (“While methods of execution have changed over the years, ‘[t]his Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.’”).
[viii] Id. at 878 (quoting Baze, 553 U.S. at 61).
[ix] See Amdt8.4.9.10 Execution Methods, Const. Ann., https://constitution.congress.gov/browse/essay/amdt8-4-9-10/ALDE_00000975 (last visited Feb. 19, 2024) (“[T]he Supreme Court has never invalidated a State’s chosen procedure for carrying out the death penalty as a violation of the Eighth Amendment.”).
[x] See Authorized Methods by State, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/methods-of-execution/authorized-methods-by-state (last visited Feb. 19, 2024).
[xi] See id.
[xii] See Alabama Schedules a Second Execution for Kenneth Smith, Using Nitrogen Gas for the First Time in U.S. History, Death Penalty Info. Ctr. (Nov. 13, 2023), https://deathpenaltyinfo.org/news/alabama-schedules-a-second-execution-for-kenneth-smith-using-nitrogen-gas-for-the-first-time-in-u-s-history.
[xiii] See New Execution Methods, Old Problems, The Marshall Project (Jan. 27, 2024, 12:00 PM), https://www.themarshallproject.org/2024/01/27/alabama-execution-kenneth-smith-death-penalty (“Smith elected nitrogen instead of lethal injection last year, citing a fear of needles that developed after the state attempted, and failed, to put him to death with drugs in 2022.”).
[xiv] See Federal Judge’s Ruling Will Permit Alabama to Execute Kenneth Smith Using Nitrogen Gas, Death Penalty Info. Ctr. (Jan. 11, 2024), https://deathpenaltyinfo.org/news/federal-judges-ruling-will-permit-alabama-to-execute-kenneth-smith-using-nitrogen-gas.
[xv] Id.
[xvi] See id.
[xvii] Kim Chandler, Federal Judge Says Alabama Can Conduct Nation’s 1st Execution With Nitrogen Gas; Appeal Planned, AP News (Jan. 10, 2024, 4:42 PM), https://apnews.com/article/alabama-execution-nitrogen-gas-federal-judge-19a95340c8936c38e7c86cfc77a7c39c.
[xviii] See Kimberly S. Robinson, Alabama Inmate First to Be Put to Death Using Nitrogen Gas (1), Bloomberg L. (Jan. 25, 2024, 10:42 PM), https://news.bloomberglaw.com/us-law-week/supreme-court-again-clears-way-for-first-nitrogen-gas-execution (“Earlier Thursday the US Supreme Court cleared the way for Alabama for the second time in two days, declining to intervene over the objections of the court’s liberal wing.”).
[xix] See id.; see also Smith v. Hamm, 601 U. S. ____, 5 (2024) (Sotomayor, J., dissenting) (“With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.”).
[xx] See Jan Hoffman, Nitrogen Hypoxia: What to Know About This New Method of Execution, N.Y. Times (Jan. 25, 2024), https://www.nytimes.com/2024/01/25/health/what-is-nitrogen-hypoxia.html.
[xxi] See Kim Chandler, Alabama Executes a Man With Nitrogen Gas, the First Time the New Method Has Been Used, AP News (Jan. 26, 2024, 6:16 AM), https://apnews.com/article/nitrogen-execution-death-penalty-alabama-699896815486f019f804a8afb7032900.
[xxii] See id. (explaining that Smith “appeared to shake and writhe on the gurney, sometimes pulling against the restraints. That was followed by several minutes of heavy breathing until breathing was no longer perceptible.”).
[xxiii] United States: UN Experts Alarmed at Prospect of First-ever Untested Execution by Nitrogen Hypoxia in Alabama (Jan. 3, 2024), https://www.ohchr.org/en/press-releases/2024/01/united-states-un-experts-alarmed-prospect-first-ever-untested-execution; see also United States: UN Experts Horrified by Kenneth Smith’s Execution by Nitrogen in Alabama (Jan. 30, 2024), https://www.ohchr.org/en/press-releases/2024/01/united-states-un-experts-horrified-kenneth-smiths-execution-nitrogen-alabama.
[xxiv] See Kim Chandler, Federal Court Says Alabama Can Carry Out First Nitrogen Gas Execution; Supreme Court Appeal Expected, PBS (Jan. 24, 2024, 8:20 PM), https://www.pbs.org/newshour/nation/federal-court-says-alabama-can-carry-out-first-nitrogen-gas-execution-supreme-court-appeal-expected (“The American Veterinary Medical Association wrote in 2020 euthanasia guidelines that nitrogen hypoxia is not an acceptable euthanasia method for most mammals because the experience of oxygen deprivation ‘is distressing.’”).
[xxv] See Mary Kekatos, Ohio Lawmakers Introduce Bill to Allow Execution by Nitrogen Gas Following Alabama, ABC News (Jan. 30, 2024, 1:55 PM), https://abcnews.go.com/US/ohio-lawmakers-bill-nitrogen-gas-execution-method/story?id=106790133 (explaining the newly introduced bill).
[xxvi] See María L. Paúl, The U.S. Had its First Execution by Nitrogen Gas. Here’s What to Know, Wash. Post (Jan. 25, 2024, 11:06 PM), https://www.washingtonpost.com/nation/2024/01/25/kenneth-smith-nitrogen-hypoxia-death-penalty/ (explaining that “the past decades have been marked by gruesomely botched executions, legal battles and a growing difficulty in states obtaining the drugs.”).
[xxvii] See Mark Berman, Pfizer tightens Restrictions to Keep Drugs From Being Used in Executions, Wash. Post (May 13, 2016, 6:54 PM), https://www.washingtonpost.com/news/post-nation/wp/2016/05/13/pfizer-says-it-is-tightening-restrictions-on-its-drugs-to-keep-them-from-being-used-in-lethal-injections/.
[xxviii] See generally Annette Choi & Dakin Andone, Executions in the US are in Decline – but Some Jurisdictions Lead the Rest, CNN (Oct. 6, 2023, 6:00 AM), https://www.cnn.com/2023/10/06/us/us-executions-death-penalty-dg/index.html.
[xxix] See id.
