In 2024, a prisoner may be sentenced to death by a jury in 27 U.S. states, although only 20 of those are capable of carrying out the jury’s mandate. Today, the death penalty has become a more hotly debated issue, as states struggle to find the appropriate “means” of execution.
As a quick legal refresher, in all death penalty cases, a jury must unanimously convict the defendant of the crime beyond any reasonable doubt, and then subsequently unanimously decide that he should be sentenced to death. In the decades that follow, numerous lengthy appeals are conducted and reviewed by state judges, and ultimately by the Supreme Court. The state’s governor may also choose to stay the execution at the last minute, if he or she believes it fit.
Methods of execution can vary widely by state, with some being discontinued due to mainstream concepts of appropriate punishment, and others becoming inaccessible due to concerted supply shortages. Eight states permit electrocution, but seven of those eight use lethal injection (the type of drug is not always specified) as their primary method. Certain states like Georgia and Nebraska had previously permitted electrocution, but courts ultimately deemed the method “cruel and unusual punishment.” Death by firing squad is still an option in states like South Carolina and Utah, but is rarely chosen in this modern age.
Last week, the state of Texas executed Ivan Cantu for a 2001 double murder, completing its first execution this calendar year. Another execution was scheduled for the same day in Idaho, but was halted due to technical difficulties. Executing the death penalty is a problem in the states where it’s used. Pentobarbital, the drug administered, has been in short supply after pharmaceutical companies have refused to provide the drug for the purpose of execution.
Texas received criticism last year for using the drug past its expiration date, but now has found a new supplier, who remains anonymous. But other states unable to find willing pharma companies are considering new means. Because of the controlled drug supply, only 24 executions were carried out last year, between five states.
Now, states are seeking a new way to execute those on death row, in order to comply with long-delayed jury verdicts, state laws, and, in some cases, voter referendums.
Recently, a new method of execution has developed—death by nitrogen hypoxia—whereby an inmate has a gas mask placed over his or her mouth, and they are slowly, and allegedly peacefully, deprived of oxygen. Within the last week, elected officials in both Nebraska and Louisiana have introduced legislation to permit execution via nitrogen hypoxia, a purportedly “more humane” way to execute those sentenced to death. Proponents of the new method argue that, compared to death by lethal injection, death by nitrogen hypoxia almost immediately makes the inmate unconscious, prior to initiating cardiac arrest. It likely causes less suffering, and is easier to administer, since no vein is required.
The first execution through nitrogen hypoxia was carried out in Alabama in January of this year, on Kenneth Eugene Smith using a gas mask that was strapped to his face. The process of asphyxiation took over 20 minutes (compare this with the range of seven to 11 minutes to death following the injection of the drug cocktail). Smith had almost been executed in 2022, but it was stopped after issues with the intravenous application of pentobarbital. This time, in a last-ditch legal effort, Smith’s attorneys asked the Supreme Court to declare nitrogen hypoxia “experimental,” and “cruel and unusual.” The Supreme Court denied the request.
Each time an execution is carried out, voices in opposition to the death penalty, like Sister Helen Prejean, speak out. One group in Idaho took a stand against nitrogen hypoxia due to a fervent belief that the state should not strive to make execution quicker or easier.
Discomfort with this level of punishment is human nature. But the state has other serious considerations to weigh. Most of the executions in 2024 are for crimes that occurred in the early 2000s, or before. Alabama’s Smith was executed for a murder he committed in 1988. In these cases, victims’ family members are waiting decades to see a jury’s demand delivered. The victim’s son, in Smith’s case, has stated that Smith has been incarcerated for nearly twice the amount of time that he knew his mother.
It may be the case that some states lack the appetite for the death penalty, but then the appropriate remedy is to remove the law from the state’s statutory code. So long as a state may legally execute a prisoner, then that state has a duty to do so within the confines of the Constitution. States like Ohio and Pennsylvania are subsisting in limbo, having halted executions without any method for execution.
With the onset of nitrogen asphyxiation, these states could finally follow their own laws.
Maggie Cleary is a visiting fellow at Independent Women’s Law Center (iwlc.org) and Deputy Commonwealth Attorney in Culpeper County, Virginia. She is former Special Counsel to Attorney General Jason Miyares and former Deputy Secretary of Public Safety and Homeland Security under the Youngkin administration. She is also a former federal prosecutor.