On the twenty fifth of January, 2024 the world witnessed the birth of a new method of execution, courtesy of the state of Alabama. Kenneth Smith was put to death by nitrogen gas for the 1989 murder for hire of Elizabeth Sennett. Death by nitrogen hypoxia was designed to be a painless and quick death, one where the condemned would be unconscious in a matter of seconds. That is not what happened that winter night in Alabama. What follows is the account of the Reverend Jeff Hood, written a couple of weeks after the execution and published as an editorial in USA Today. Reverend Hood was Kenneth Smith’s spiritual advisor, who stood not five feet from the condemned man in the execution chamber, praying over him as the nitrogen gas flowed.
“When nitrogen gas started to flow, Kenny’s face grew more and more intense with every second. Colors started to change. Veins started to flex. Every muscle in his body started to tense. We had talked for weeks before this moment about what he wanted to do. Never did he say that he would hold his breath. When things began to last way past the seconds that we were told it would, I began to wonder why. His chest moved up and down with gusto. He was clearly trying to breathe. “Shouldn’t he be unconscious already?” He clearly wasn’t. He started to look as if his head would pop off. I leaned back. There was nowhere to fall. There only was the nightmare in front of me. As Kenny’s reactions grew more visceral and violent, the expressions of the guards started to shift dramatically. I couldn’t believe my eyes. The gurney wasn’t supposed to move. Yet, move it did. Kenny started heaving back and forth. The restraints weren’t enough to keep him still. Kenny was shaking the entire gurney. I had never seen something so violent. Kenny’s muscles went from tensed up to looking like they were going to combust. Veins spider-webbed in every direction. It looked like an army of ants was running throughout every centimeter of Kenny. There was nothing in his body that was calm. Everything was going everywhere all at once, over and over. Repeatedly, Kenny’s face jerked toward the front of the mask. I kept wondering if his bulging eyeballs were going to shoot right through. Saliva, mucus and other substances shot out of his mouth. The concoction of body fluids all started drizzling down the inside of the mask. Back and forth … back and forth … back and forth Kenny kept heaving. We had been told by Alabama officials that the gas would kill Kenny in seconds, but the execution was now going on for minutes. Kenny was very much still conscious. I could see the horror in his eyes. In fact, I’ll never forget it. Taking off my glasses, I sobbed. I had never felt so far away from God. I prayed that God would forgive me. I was doing the best that I could. Convulsions gave way to shallow breathing. Kenny was barely conscious. Every breath brought more death. It wasn’t just death of a man − it was death to any idea that there could be anything humane about executing a person. We were told that we would be watching something peaceful. The devastating spectacle of it all was everything but.”
Alabama prison officials disagreed with the Reverend Hood’s assessment, stating that they’d witnessed the condemned trying to hold his breath as long as he could, and as a result his thrashing and straining against his straps on the gurney, along with the prolonged minutes before unconsciousness were not surprising. Officials concluded that the procedure had gone exactly as planned and that there were no complications that would cause them to reconsider this method. In fact, just recently Alabama conducted a second execution, that of Alan Eugene Miller, who died by nitrogen gas on September 26, 2024, witnesses recording a similar thrashing lasting minutes before unconsciousness. With the state of Indiana executing Joseph Corcoran (while trying to prevent any media from witnessing the execution) and Oklahoma putting Kevin Underwood to death within 24 hours of each other this week, perhaps now is as good a time as any to have a conversation about capitol punishment in America.
(editorial note. I am not going to be focusing on the ethics of executing prisoners with severe mental illness and/or developmental disabilities as it merits an essay of it’s own as part of a wider discussion of the treatment of the mentally ill in the United States)
First let’s breakdown what methods of execution are available in what states. The following statistics are from the Death Penalty Information Center. Currently 23 US States do not allow capitol punishment, as well as Puerto Rico:
Alaska
Colorado
Connecticut
Delaware
Hawaii
Illinois
Iowa
Maine
Maryland
Massachusetts
Michigan
Minnesota
New Hampshire*
New Jersey
New Mexico
New York
North Dakota
Rhode Island
Vermont
Virginia
Washington
West Virginia
Wisconsin
Interestingly enough, New Hampshire has abolished the death penalty but not yet commuted the sentence of Michael Addison, who is the only person on New Hampshire’s death row and could still face execution by lethal injection.
Speaking of which, far and away the most prevalent method of execution in the US is lethal injection. In addition to being the primary method of execution for both the federal government and the US military, lethal injection is the primary method of execution for 26 states: Alabama, Arizona, Arkansas, California, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, and Wyoming.
The electric chair is currently the primary method of execution in only one state, South Carolina, though condemned prisoners in Florida and Tennessee have the option to choose the electric chair, as well as it being the alternate method of execution still permitted in Alabama, Arkansas, Kentucky, Louisiana, Mississippi and Oklahoma.
Lethal gas is authorized as an alternate execution method in 8 states: Alabama, Arizona, California, Louisiana, Mississippi, Missouri, Oklahoma and Wyoming.
Firing squad is an alternate method of execution in 5 states: Idaho, Mississippi, Oklahoma, South Carolina and Utah
And believe it or not, hanging is still an alternate method of execution on the books in New Hampshire, and should they proceed with Michael Addison’s death sentence and no lethal injection drugs are available, Michael would then be executed by hanging. Despite the fact that there hasn’t been a judicial hanging carried out in the US since Delaware hanged convicted murderer Bill Bailey on January 25, 1996, and that it is likely to be the last such execution, it is darkly ironic that a black man is the last who could possibly face the gallows, considering what the noose has symbolized to Black America for hundreds of years.
Now that you have an understanding of what methods of execution are still legal in the US and where they are on the books, let’s explore the most prevalent method of execution in the United States, and the one the vast majority of prisoners on death row today face, lethal injection.
The US Supreme Court case Gregg v. Georgia laid the groundwork for the reinstitution of capitol punishment in 1976, after a nationwide pause of a decade. The following year Oklahoma became the first state to legally adopt lethal injection as an approved method of execution, Texas adopting the method just a day after Oklahoma. In the following weeks, Oklahoma’s state Medical Examiner Jay Chapman would propose a protocol (now named after him) that, in theory, would make the process less painful. The following is an excerpt from a Newsweek article in 2017 where Dr Chapman recounts the genesis of his method.
~Chapman is widely called the father of the lethal injection. In the late 1970s, when Chapman was Oklahoma’s medical examiner, a state legislator named Bill Wiseman asked him to help come up with a more humane way to kill prisoners than methods such as hanging and the electric chair. At the time, the Supreme Court had just reinstated the death penalty after a years long ban, and murderer Gary Gilmore had faced a firing squad in Utah.
“I got a call from one of the legislators, who was William Wiseman,” says Chapman, 78, who works out of his home, a single-level house set back from a tree-lined street in Santa Rosa, California, when he’s not at the morgue. “He asked me if we had any ideas about how executions should be carried out.”
Chapman initially felt he wasn’t qualified. “My first response was that I was an expert in dead bodies but not an expert in getting them that way,” he once recalled to Deborah Denno, a professor at the Fordham University School of Law who interviewed him for a 2007 Fordham Law Review paper. He also worried that getting involved with the issue could have a negative impact on his medical career. But he says he had spoken with colleagues in Oklahoma about the Gilmore case and the way he died. “We treated animals more humanely than we did people,” he remembers thinking. “So from that idea was the idea of execution by some pharmaceutical agent.”
To create the formula, he says, he proposed a “method that was used commonly every day around the world in inducing anesthesia for surgical procedures. So all it entailed was just carrying that to the extreme by using toxic amounts of the drugs involved.” He and Wiseman drafted the language quickly on a notepad, according to Denno.
In May 1977, the Oklahoma Legislature passed a bill based on Chapman and Wiseman’s proposal. The Chapman Protocol—or the Oklahoma Protocol, as it became known—involved three ingredients: sodium thiopental, an anesthetic (“That’s the drug that would make an inmate unconscious,” Denno says); pancuronium bromide, a muscle relaxant (“It literally paralyzes the inmate,” says Denno, who recalls Chapman telling her it was used for the benefit of “the people watching the execution…so the inmate doesn’t jerk around or show signs of looking alive when he’s actually dying”); and potassium chloride, which causes cardiac arrest. (Chapman initially recommended only the first two ingredients; in 1981, he recommended that the third ingredient also be used.)~
It would be with this 3 drug cocktail method that Charles Brooks Jr was executed for murder in Texas on December 7, 1982, marking the first use of lethal injection in the US, and in the over forty years since lethal injection has become by far the most common method of execution in the United States. In the decades since it’s implementation however, lethal injection has faced criticism over whether the procedure violates a provision in the 8th Amendment to the US Constitution (specifically the ban on cruel and unusual punishment) and the expertise of those administering the lethal injections. Firstly let’s explore a series of lethal injections from the past 20 years that have raised serious questions over this execution method. The following is an account relayed by the Reverend Bill Breeden, who was the spiritual advisor for Corey Johnson, a federal prisoner who was executed via lethal injection on January 14, 2021.
“I stood in a small chamber in the U.S. Penitentiary in Terre Haute, Indiana, while the federal government carried out an execution. Relegated to a spot 6 feet away from the gurney, I prayed with Corey Johnson, the ‘Gentle Giant’ as he was known on death row. As soon as the drugs began to flow, Corey’s suffering grew. I could see that he was in physical distress; his chest heaved, and he said his hands and mouth were burning. It took several eternal minutes for him to die. Later, an autopsy showed that Corey had suffered flash pulmonary edema, an excruciatingly painful condition akin to being waterboarded. His lawyers had warned that this was a risk the government’s execution method presented, but the courts had allowed federal executions to proceed.” Evidence of pulmonary edema (fluid build up in the lungs) in the autopsies of prisoners executed via lethal injection have been amongst the biggest drivers of the controversy. A 2020 investigation published by NPR detailed the efforts of Dr. Joel Zivot, an anesthesiologist and Mark Edgar, an anatomical pathologist, who reviewed more than 200 autopsies of executed prisoners. Their findings were staggering, that 84% of the autopsy reports indicated that the prisoner had experienced pulmonary edema during their executions. Human beings cannot experience pulmonary edema while unconscious, therefore these prisoners were conscious, aware of what was happening and experiencing what is akin drowning or suffocating. This would then make lethal injections where the condemned experienced pulmonary edema akin to being waterboarded, which is banned by the United Nations as torture.
On December 13, 2006 the botched execution of Angel Nieves Diaz would cause the state of Florida to halt executions the better part of a year. 35 minutes after Diaz received the lethal injection he was still alive (typical executions take between 7-10 minutes), necessitating a second round of drugs that finally ended Diaz’s life nearly an hour after the execution began. The autopsy conducted on Diaz found that his vein had been accidentally pierced, and as a result the chemicals were injected into soft tissue, not the intended vein, leading to a drawn out death. The state of Ohio had to abandon the September 15, 2009 execution of Romell Broom after officials spent 2 hours trying to find a useable vein, during which time Broom was repeatedly pierced with a needle on both arms, legs, hands and ankles. After lengthy appeals the State of Ohio eventually rescheduled Broom’s execution for 2022, but he died of suspected complications from Covid-19 in 2020. On January 16, 2014 Dennis McGuire was put to death in Ohio using an untested drug combination (Midazolam and Hydromophone) after they ran out of their supply of Pentobarbital. McGuire’s execution lasted 26 minutes, during which time he struggled, gasped for air, made choking sounds and had his stomach abnormally swell up. McGuire struggled and remained conscious for up to 15 minutes before he became still. McGuire’s family sued the state of Ohio in the aftermath of the execution and only dropped the suit after the state committed to never use that specific drug combination in another lethal injection again.
The last lethal injection I will cite is the April 29, 2014 execution of Clayton Lockett by the state of Oklahoma. The officials conducting the execution, including a doctor in attendance, tried several times to find a useable vein for the execution, puncturing Lockett’s left arm, collar bone and left foot before settling on the femoral vein in Lockett’s groin. However, according to forensic pathologist Joseph Cohen, who was hired by Clayton Lockett’s legal team to review the execution, officials failed to ensure that the IV went all the way into the femoral vein, resulting in the chemicals being injected into Lockett’s muscle instead. The state of Oklahoma would counter this claim and later conclude that officials placed a cloth over Lockett’s exposed groin, and therefore failed to see that the vein had collapsed after insertion and that some of the chemicals had likely leaked through the vein. What is not in dispute is what happened next. According to witnesses, a full 13 minutes into the execution and 3 minutes after Lockett had been declared unconscious, Lockett began to struggle, going so far as to raise his head and say “Oh man… I’m not… something’s wrong.” He continued to struggle and loudly exhale until prison officials halted the execution at 6:56pm, a full 33 minutes after the execution began as the doctor present concluded there had been a clear vein failure and that there were not enough drugs to administer the injection a second time. While prison officials debated whether or not to take Lockett to the hospital, he died of a heart attack at 7:06pm. It took Clayton Lockett 43 minutes to die, sparking a wave of nationwide and international condemnation. Oklahoma temporarily halted executions to investigate the cause of the botched execution, but after concluding that it had been human error and not an issue with the drug cocktail itself, they resumed lethal injections in 2015. Professor Austin Sarat concluded in his book “Gruesome Spectacles: Botched Executions and America’s Death Penalty” that approximately 7.1% of all the lethal injections conducted between 1982 – 2010 can be considered as having been botched, a significantly higher percentage than any other method of execution (the gas chamber was second with 5.4%).
In the decades since the lethal injection’s inception, the European Union and UK have banned the export of any drugs to departments of correction in the US if it is determined that they could be used in executions (capitol punishment is banned across the entire European Union and the UK). Many pharmaceutical companies, including Pfizer, have also prohibited the sale of drugs to state or federal authorities that intend them for use in executions. As a result, many states have struggled to obtain drugs for use in lethal injections, leading states to experiment with several different drug combination protocols, develop alternative execution methods or write laws that shield department of corrections from having to disclose where they obtain drugs used for lethal injections. There is also the issue of who is inserting the IV lines and administering the injection. While state medical boards (in states where capitol punishment has not been banned) do not prohibit the participation of doctors or nurses in executions, they rarely operate in any other capacity than preparing the drugs before their application and certifying death after a prison official has declared an executed prisoner deceased. As a result, depending on the state where the lethal injection is being conducted, the people inserting the IV’s and actively administering the drugs can range from paramedics, individuals with some nursing or medical background, or even prison officials with little medical training. In a 2007 New York Times article articulating his feelings for the current state of lethal injections in the US, Jay Chapman was famously quoted as saying, “It never occurred to me when we set this up that we’d have complete idiots administering the drugs.” As of December 2024, lethal injection is still the most widely utilized method of execution in the United States.
There are several arguments I’ve heard for maintaining the death penalty in the US. The first is that it serves as a deterrent. Considering that capitol punishment has been around for millenniums I can confidently state that the threat of execution hasn’t been a particularly effective deterrent for capitol crimes. And if being hanged, drawn and quartered, boiled alive or burning at the stake didn’t deter people from committing capitol crimes, nothing will. Secondly, they’ll ask should Ted Bundy have been allowed to live? Timothy McVeigh? Don’t executions need to remain a part of the criminal justice system so that monsters like this can be removed from humanity? The issue I would raise is that, not every person sentenced to death is a notorious serial killer or domestic terrorist, nor has every person given a death sentence even been guilty. According to statistics from the Innocence Project, since 1973 at least 200 people sentenced to death in the United States were later exonerated and released from prison. Unfortunately, not everybody is as lucky and there have been several highly questionable executions in recent history. Cameron Todd Willingham was executed by lethal injection in Texas in 2004 for the murder of his young children. However, after Cameron Willingham’s attorney and the Innocence Project hired independent fire investigators to review the case. Those investigators concluded that the fire that killed Cameron’s children was accidental, with no tangible proof of arson. In 2005 the state of Texas established a commission to investigate the allegations of forensic incompetence, and the Fire Scientist Craig Beyler, who investigated the evidence, found no scientific basis for arson. Furthermore, Beyler added that the original fire investigators had ignored evidence and relied on discredited junk science to implicate Willingham.
There is also the case of Troy Davis, who was executed by lethal injection in Georgia in 2011 for the murder of police officer Mark MacPhail. At the 1991 trial, nine different eyewitnesses identified Davis as the shooter, and despite no physical evidence connecting Davis to the shooting he was sentenced to death. In 2003, the newspaper the Atlanta Journal-Constitution conducted and published a series of investigations where seven of the nine eyewitnesses recanted their testimony, many relating that the police had pressured them to implicate Davis. After a series of appeals to the Georgia Court of Appeals and the US Supreme Court, and international condemnation of the case, Troy Davis was none the less put to death. These are just two of the numerous instances in the 20th and 21st century where people were put to death and later found to be demonstrably innocent of the crimes they were executed for. Therein lies one of the central issues with capitol punishment, once the condemned has been put to death there is no reversing that. Unlike those serving prison sentences who are later found to be innocent, freed and compensated for the pain and suffering of their arrest and incarceration, those who are executed and later found to be innocent are still dead, and no public reevaluation or exoneration can compensate for their wrongful death. According to a 2014 study conducted by the Death Penalty Information Center based on statistics from the past 40 years, it estimates that at least 4% of all prisoners currently on death row are innocent of the murders they were convicted of. That begs the question, is the risk of taking innocent lives too great to continue imposing capitol punishment?
As for those who might make the argument that it’s cheaper to just execute murders rather than keep them imprisoned for life, you’d be surprised at how expensive the process of a judicial execution really is. On August 8, 2024 the state of Utah executed Taberon Honie, an American Indian from the Hopi-Tewa community. In response to multiple media requests, the state of Utah released the cost of just the execution itself, which amounted to $288,685, over two hundred thousand of which was spent on purchasing the lethal drug (Pentobarbital) from an unknown source. It also costs states far more to prosecute and go through the appeals process with a capitol case. The state of Utah published a review in 2012 where it estimated that it spent an average of $1.6 million dollars more per case on death penalty prosecutions than it did on cases with a maximum sentence of life in prison, and that was 12 years ago. It is fair to estimate that hundreds of millions of dollars are spent each year by the government (federal and the 28 states where capitol punishment is on the books) to prosecute, appeal and carry out capitol punishment.
So where does that leave us? With lethal injection protocols being consistently challenged on their constitutionality, and the cost/difficulty in obtaining the drugs necessary to carry out the executions, what comes next? Some states, like Alabama, are more than willing to experiment with a largely untried method of execution in nitrogen gas, which after just two executions has already drawn considerable controversy. Other states, like South Carolina and Tennessee are utilizing older methods of execution, such as the electric chair and the firing squad. Yet the whole point of the lethal injection was to do away with the gruesome, violent spectacle of hanging, electric chair, firing squad and gas chamber. How can we find ourselves in a place where we are reverting to such draconian methods in 2024? I have seen the argument made countless times that the 8th amendment doesn’t provide for a painless execution, merely that it not be cruel and unusual. Many would tell you that they are unconcerned if a condemned prisoner experiences some pain and loss of dignity during their execution. They shouldn’t have committed murder then! They would further argue that the death these prisoners experience, even if it is painful or gruesome, is nothing compared to what they inflicted on their victims. If anything they deserve to feel pain when they die. I want you for a moment to remove from your mind that the individuals involved are convicted murders, because regardless of their crimes, no matter how monstrous, they are still human beings. Do you really feel good saying that you have no compunctions or moral objections to a human being dying a gruesome, painful and humiliating death? As a reminder, we are not governed by Hammurabi’s Code or graphic revenge films, we are a nation of laws, and the law prescribes that certain of our population have been deemed to be such a danger to our society that they must have their lives ended, not that they suffer horrific deaths as payback for their crimes. If anything, I would think that pro capitol punishment advocates would be eager to introduce a quick, painless method of execution, thereby taking away one of the pillars of those who argue against the death penalty. I personally don’t believe that we should have capitol punishment, that the cost of potentially executing innocent people is too high and that we as a society ought not to be engaged in the judicial killing of our fellow citizens in 2024. But I don’t condemn the loved ones of victims who support capitol punishment either. I cannot begin to imagine the pain and loss of those whose loved ones have been so viciously taken from them, and I hope I never will. But on one point I am absolutely immoveable, if we cannot find ways that are less gruesome and/or needlessly painful that our current methods, methods that are less humane than the ways in which we put animals down, then we must put a stop to capitol punishment until we can.
Sources used to research and fact check this essay can be found below:
Jeff Hood, USA Today 2/19/2024: www.usatoday.com/story/opinion/2024/02/19/alabama-execution-nitrogen-gas-witness-cruel-torture/72616304007
Death Penalty Information Center: www.deathpenaltyinfo.org
Elizabeth Weil, New York Times 2/11/2007: www.nytimes.com/2007/02/11/magazine/11injection.t.html
Max Kutner, Newsweek 5/1/2017: Meet A. Jay Chapman, “Father of the Lethal Injection” – Newsweek
Maurice Possley and Steve Mills, Chicago Tribune 12/9/2004: www.chicagotribune.com/2004/12/09/man-executed-on-disproved-forensics
Rhonda Davis, Atlanta Journal-Constitution 9/19/2011: www.ajc.com/news/local/troy-davis-life-board-hands/oSMdztTt3Z8rYHBOqqFq0M/
Katie Fretland, The Guardian 4/30/2014: www.theguardian.com/world/2014/apr/30/oklahoma-execution-botched-clayton-lockett
Dana Ford and Ashley Fantz, CNN.com 1/16/2014: www.edition.cnn.com/2014/01/16/justice/ohio-dennis-mcguire-execution
Anish Vij, LAD Bible 9/20/2024: www.ladbible.com/news/crime/death-row-workers-worst-experience-florida-prison-047569-20240920
Noah Caldwell, Ailsa Chang, Jolie Myers, NPR 9/21/2020: www.npr.org/2020/09/21/793177589/gasping-for-air-autopsies-reveal-troubling-effects-of-lethal-injection
Innocence Project: www.innocenceproject.org/innocence-and-the-death-penalty/
Wikipedia: wikipedia.org/wiki/Lethal_injection
