On Thursday night, the state of Alabama ended the life of Kenneth Smith, the first death row inmate executed by nitrogen gas. The state had tried to execute Smith once before using lethal injection, but had to abort because it could not find a suitable vein. Up until Smith's execution, there were only five methods of execution authorized by law in the U.S.: lethal injection, the gas chamber, the electric chair, hanging, and the firing squad. Thanks to Alabama, we now have a sixth.
Accounts of Smith's death are disturbing. He suffocated to death over more than 20 minutes, visibly convulsing and struggling.
Make no mistake. Smith was a convicted murderer who took the life of Elizabeth Sennett, whose husband—a minister—hired him to kill her for the sum of $1,000. It is frequently argued that the execution of a murderer should not be painless and quick. The more suffering, the better the punishment. But however understandable the victims' families' desire for revenge, should our government, a beacon of justice and freedom in the world, be in the business of torturing a person to death?
In the broader debate over whether the U.S. should have a death penalty, methods of execution illustrate the barbaric nature of this punishment. Is there a humane way to kill someone? The guillotine was thought to be the most humane because it is fast and precise. Same with the firing squad. However, those methods are now largely disfavored because the optics are not good. People want to believe that death comes easily to those whose lives the government has decided are not worth living.
The lethal injection machine was initially attractive for that reason. It was thought that this method simply put the person to sleep and ended their life. That is far from the truth. Lethal injections are regularly botched. In the case of John Wayne Gacy (who I represented), it took almost an hour for him to die. The medical literature shows that because inmates are not properly anesthetized, they feel the pain and suffocation caused by pulmonary edema as well as the burning of potassium chloride, the third drug in most lethal injection protocols. And in many cases, it's impossible to tell that they're experiencing severe pain because they're paralyzed.
Other methods of execution are similarly cruel. The electric chair has caused defendants' heads to catch on fire. And while several states ban the use of gas to euthanize animals due to the pain it causes them, many of those same states still have gas on the books as an available method of execution for humans.
One of the reasons that executions fail is that doctors are not permitted to participate due to the Hippocratic Oath. They are allowed only to pronounce an inmate's death. The mechanisms are also not well designed. In fact, the first lethal injection machine was invented by a Holocaust denier, Fred Leuchter, who was neither a doctor nor an engineer.
The Constitution's Eighth Amendment bars cruel and unusual punishment. How can execution be anything but? Yet according to current American jurisprudence, capital punishment is neither cruel nor unusual. Our country has always had a death penalty (with the exception of several years when it was declared unconstitutional due to imperfect jury instructions). The punishment is deemed to be cruel when it tortures people, but courts have been reluctant to find it such, despite the number of botched executions. The U.S. Supreme Court has determined that whether a punishment is cruel and unusual depends upon evolving standards of decency—meaning, what was acceptable in the 1930s may not be now. The more our society evolves, it is thought, the less it would support the penalty. The less often legislators and juries employ the death penalty, the more cruel and unusual the public will deem it to be.
Support for the death penalty has waxed and waned over the years. Public opinion determines whether states allow it, whether prosecutors seek it, how often jurors give it, and how frequently the executions are carried out. Public polls show capital punishment presently has a historically low approval rating. Less than 40 percent favor it over life in prison. Twenty-three states have abolished it and there are moratoriums in seven other states. The number of death sentences is down, as are number of executions—only 24 took place in 2023. Worldwide, all but four other advanced Western democracies have abolished it.
My prediction is that our country's appetite for executing people will continue to dwindle. And the more barbaric the methods, the more likely people will be to question why we are continuing this practice, which, by all accounts, deters no one from committing murder. When these horrible methods are used and botched executions occur, it only provokes greater public outcry to cease capital punishment once and for all.
Karen Conti is a practicing lawyer in Chicago and author of Killing Time with John Wayne Gacy: Defending America's Most Evil Serial Killer on Death Row, to be published March 26, 2024
The views expressed in this article are the writer's own.
Uncommon Knowledge
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