DemDaily: Download on the Death Penalty

January 25, 2024

The US Supreme Court on Wednesday rejected an appeal to stop Alabama from proceeding with the nation’s first execution using nitrogen gas to carry out the death penalty.

Barring any last-minute developments, prison officials plan to carry out the execution at 6:00pm Central time tonight.

The Case involves Kenneth Smith, one of three men convicted in 1989 for the killing of a pastor's wife in a murder-for-hire scheme. Smith's conviction and death sentence were vacated on appeal, and in his 1996 retrial, the jury recommended life imprisonment. The judge, however, overruled their recommendation and issued the death penalty (Alabama, and every other state, has since made it illegal for judges to overrule juries in imposing the death penalty).

Smith was scheduled for death by lethal injection on November 17, 2022, but correction workers botched the execution -- unable, after hours of unsuccessful attempts, to set the intravenous lethal line into his veins. The incident, then Alabama's third consecutive failed execution by the state, prompted a formal review of the state’s execution process.

Smith's execution was rescheduled for today, January 25, despite legal challenges contending that a second execution attempt by Alabama would violate the US Constitution’s eighth amendment’s protections against cruel and unusual punishment.

Death by nitrogen hypoxia is an untested method in the United States; most scientists -- and even veterinarians -- have ruled it out on ethical grounds as an experimental technique fraught with too many risks for purposes of euthanasia.

The protocol released by Alabama Corrections officials calls for strapping Smith to a gurney in the state’s execution chamber, placing a mask on his head and releasing a flow of pure nitrogen into his lungs, depriving him of oxygen.

State attorneys have argued that nitrogen gas is painless, with unconsciousness occurring in a matter of seconds followed by stoppage of the heart.

However, a group of United Nations experts who have been following the case, warned that experimental executions by gas asphyxiation – such as nitrogen hypoxia -- could “result in a painful and humiliating death,” with no scientific evidence to the contrary.

In addition to the US Government and the US Military, 27 states retain the death penalty. Of those, Arizona, California, Ohio, Pennsylvania and Tennessee have moratoriums or pauses by executive action on executions, and Oregon and Wyoming have death penalty statutes but have not performed executions since 1964 and 1992, respectively. 23 states and DC have abolished capital punishment.

The United States is one of few advanced democracies and the only Western nation that applies the death penalty regularly. Globally, it is legal in 55 countries.

In 1972, the US Supreme Court struck down capital punishment statutes in Furman v. Georgia, reducing all pending death sentences to life imprisonment at the time. Rather than declare it unconstitutional, the justices found that states were applying the death penalty arbitrarily and in a discriminatory manner.

In response, more than 30 states rewrote their death penalty statutes, and in the 1976 Gregg v. Georgia decision, the High Court affirmed the constitutional legality of capital punishment in the United States.

The federal death penalty, however, was not reinstated until 1988 under a narrow class of offenses, which were further expanded under the Federal Death Penalty Act of 1994. All involved murder with the exception of espionage, treason, and drug trafficking in large amounts.

Supreme Court rulings in 2002 and 2005 found the death penalty unconstitutional for the “mentally retarded” and defendants who committed their crimes as juveniles -- as it would violate the Eighth Amendment's "cruel and unusual punishment" prohibition.

Although the federal government had not executed a prisoner since 2003, the Trump administration's Department of Justice resumed executions for federal crimes in 2019.

Support for capital punishment has fallen to a five-decade low in the United States. According to an October 3-20, 2023 Gallup poll, 53% of adults favor the death penalty for convicted murderers, with 81% of Republicans, 51% of independents and just 32% of Democrats favoring capital punishment. A record high of 50% of Americans say the death penalty is applied unfairly, compared to 47% fairly (MOE:±4%).

On July 1, 2021, under the Biden administration, US Attorney General Merrick Garland announced halted all federal executions pending review of the changes made under the Trump administration.

These policies, however, became permanently enshrined with Trump’s three appointments to the US Supreme Court -- resulting in a six-to-three far-right supermajority that has been increasingly unwilling to intervene in death penalty cases.

According to the Death Penalty Information Center, over the last five decades, close to 200 people wrongly convicted and sentenced to death have been exonerated, and approximately 2,400 prisoners currently face execution. Since the 1976 reinstatement of the death penalty, 1,582 individuals have been executed in the United States.

Tonight will make 1,583.

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Kimberly Scott

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Sources: Death Penalty Information Center, NPR, The Guardian, CNN, Legal Defense Fund, New York Times

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