A brief history. In the American colonies, death sentences, imported from Great Britain, were by hanging. Hanging could be gruesome.
The fall through the trap door in the gallows sometimes caused decapitation. If the condemned’s neck didn’t snap immediately, he could suffer lengthy, painful, nauseating-to-watch strangulation. The lifeless body swaying from the gallows eventually followed.
In the 1890s, New York switched to the electric chair. Other states followed. Here’s how Supreme Court Justice William Brennan described how it worked. Or didn’t.
“(T)he condemned prisoner’s … limbs, fingers, toes, and face are severely contorted …(his) eyeballs sometimes pop out and rest on [his] cheeks. The prisoner often defecates, urinates, and vomits blood and drool …Witnesses hear a loud and sustained sound like bacon frying, and the sickly-sweet smell of burning flesh permeates the death chamber.”
For decades, the electric chair was the primary way of carrying out capital punishment. There were others.
One was the firing squad. Historically the condemned would be strapped to a chair surrounded by sandbags to absorb his blood. Shooters’ intentionally or accidentally missing their target, the heart, would prolong the agony of the death. In the U.S. the firing squad has never gained wide popularity.
Another method has been the gas chamber. First introduced in Nevada in 1924, gas chamber asphyxiation also can cause a horrible death. The eyes pop, the skin turns purple. The condemned may gasp for air, breathing poison, being tortured for eight, even 11, minutes. The most recent execution in a gas chamber in America was 25 years ago. It’s too close to Hitler for most people.
For four years in the 1970s, America had a respite from capital punishment. In 1972, the Supreme Court struck down death penalty laws as unconstitutionally vague and arbitrarily applied. In response, many states rewrote their laws, and in 1976, the Supreme Court approved them. The death penalty was back in business.
And so was the search for new ways to kill people. Oklahoma introduced lethal injection in 1977, and like New York and the electric chair decades before, other states followed.
Lethal injection has been another failed life and death experiment. Doctors and nurses refuse to participate in executions and so prison personnel, without medical credentials, perform executions. They often jab needles for hours, unsuccessfully trying to find a vein — a horrifying spectacle so frequent that it has gained the euphemistic moniker, botched executions.
In addition, pharmaceutical companies have been refusing sell drugs to be used in executions. As a result, states mix and match and experiment. Their invented cocktails of drugs have induced torture.
Which brings us to — drum roll please — the newest way to execute people, the way Alabama killed Kenneth Smith, nitrogen hypoxia. That procedure deprives a person of all oxygen and replaces it with 100% nitrogen. It’s an untested procedure.
RELATED | I’m an anesthesiologist. Kenneth Smith’s execution by nitrogen gas was far from ‘textbook’
The Supreme Court voted 6-3 to allow Smith’s execution to proceed immediately and not fully review his case. Those six justices didn’t have the decency to write an opinion and explain why. Smith was sentenced to death for his role in a 1988 murder-for-hire.
Smith, we should note, was executed even though the Alabama jury voted 11-1 to sentence him to life imprisonment. The trial judge sentenced him to death anyway. The fact that this procedure of judicial override became illegal after his trial did nothing to save his life.
In the Supreme Court’s recent decision, Justice Sonia Sotomayor, for the dissenters, condemned Alabama using Smith as “a guinea pig.” She noted that the store-bought mask put him at serious risk of choking to death on his own vomit; and that if he didn’t die from the nitrogen hypoxia, he could end up in a permanent vegetative state.
The execution went forward with Alabama authorities having asserted that their nitrogen hypoxia would make Smith unconscious “within seconds.” It didn’t. Smith was observed writhing and shaking on the gurney for many, many minutes — 22 from the time the nitrogen was turned on — until he died.
After the death, the state attorney general celebrated Smith’s execution as “textbook” and claimed, “Nitrogen hypoxia as a means of execution is no longer an untested method — it is (now) a proven one.” He promised more of these executions.
The debate about the method the government used to kill Kenneth Smith matters because of what it says about us. It also matters legally because methods of execution end up before the Supreme Court on a claim invoking the constitutional prohibition against cruel and unusual punishment.
The argument about execution methods, however, diverts our attention from the more fundamental question: Why does this country, unlike most others, in 2024 still have the death penalty? After all, the system of capital punishment — there’s no longer any argument — is racist, classist and arbitrary; targets not the worst offenders but rather the most vulnerable among us; serves no purpose other than vengeance; and convicts the innocent.
Someday logic and our better angels will prevail. Someday we will abolish state-sanctioned killing of our fellow human beings. Someday.
Source: Greenfield Recorder, Bill Newman, Opinion, February 4, 2024. Bill Newman is a Northampton-based civil rights lawyer and co-host of Talk the Talk on WHMP.
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