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Alabama plans to experiment with nitrogen hypoxia, a previously untried method of execution, when it puts Kenneth Smith to death on Jan. 25. Experience has shown that when it comes to the death penalty, such experiments often go awry and produce disastrous consequences. Alabama’s scheduled execution of Smith may offer yet another tragic example of what happens when states trot out such methods. Yet, last week District Judge R. Austin Huffaker chose to disregard that risk and give Alabama the go-ahead.

Huffaker ignored the lessons of history and illustrated the Kafkaesque complexities and inhumanity of the law now governing the choice of execution methods.

Before looking closely at Huffaker’s disturbing opinion, it’s worth looking at other instances in which states have first tried new ways of putting people to death. Let’s start with New York’s late-19th-century decision to replace hanging with the electric chair.

It did so after a long period of studying different methods of execution and after being assured by experts that electrocuting someone would be a painless and humane way of carrying out a death sentence. After all that, on Aug. 6, 1890, its first use of the electric chair, in the execution of William Kemmler, went disastrously wrong.

According to the Death Penalty Information Center, in the run-up to his execution, Kemmler pleaded with corrections officers: “Don’t let them experiment on me more than they ought to.” But despite his pleas, the experiment went on.

The results, the center reports, were disastrous:

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After an initial 17-second administration of high-voltage electric current, a doctor declared Kemmler dead. Then Kemmler let out a deep groan. … Reports of the execution say that “After 2 minutes the execution chamber filled with the smell of burning flesh. 2 of the witnesses fainted. Several others were overcome with severe attacks of nausea.” …Newspapers called the execution a “historic bungle” and “disgusting, sickening and inhuman.”

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Fast-forward three decades to 1924, the first time the gas chamber was used. It occurred in Nevada.

There, state officials first tried to pump cyanide gas into the cell of Gee Jon while he slept, but this failed. When Jon was finally killed in a specially constructed gas chamber, he suffocated in a toxic cloud of poison air. Witnesses could faintly smell the gas as it leaked from the chamber.

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Finally, in 1982, when Texas first used lethal injection, things again did not go well. Prison officials repeatedly failed in their efforts to insert an IV into a vein in the arm of Charles Brooks. When they finally succeeded in doing so, it took several minutes for a terror-stricken Brooks to die.

Though he pays no attention to that history, Judge Huffaker clearly is aware that Alabama is venturing into uncharted territory in its plan to use nitrogen to kill Smith. His rhetoric reveals a kind of nervous anxiety about nitrogen executions.

Throughout his 48-page opinion, Huffaker calls his readers’ attention to what the judge calls the state’s “novel” plan. But he does little to assuage Smith’s justifiable concerns about what novelty will mean in the execution chamber or to think about how the jurisprudence surrounding methods of execution should respond to the fact of novelty.

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That jurisprudence is quite clearly designed to keep the machinery of death running, and Huffaker plays his part.

In truth, it has never been easy for death-row inmates like Kenneth Smith to win when they challenge a method of execution. This is because, in its entire history, the Supreme Court has never invalidated a method of execution on constitutional or any other grounds.

And in a series of decisions dating back to 2008, the court has given states great latitude in deciding how they want to carry out executions. Those decisions have placed the burden on petitioners to show that any method fails to meet legal standards, and they have made meeting that burden next to impossible.

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To prevail, someone like Smith must show that a method of execution poses a significant risk of imposing what the courts call “superadded pain,” and the condemned must also identify a readily available execution alternative.

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Smith’s views about nitrogen hypoxia have been a bit hard to follow. Initially he indicated a preference to be put to death by nitrogen hypoxia rather than lethal injection, a preference the state ignored when it tried unsuccessfully to execute him in November 2022.

In the lawsuit that Huffaker just decided, Smith challenged not nitrogen hypoxia, per se, but key details of the protocol that Alabama said it would follow, including details about the way the nitrogen will be administered and the mask that will cover his face.

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As the numerous botched lethal injections that have occurred all over the United States have shown, when it comes to executing someone such details make all the difference in the world. Getting them right is necessary to ensure that executions do not become gruesome spectacles.

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Judge Huffaker notes that, among other things Smith contends, the Alabama protocol “does not contain guidance on the type of mask to be used; how, when, and by whom it will be placed, adjusted and inspected; … what training the … execution team will receive; how [prison personnel] will conduct a final inspection to determine if the mask has been properly placed; and what will happen if the mask becomes displaced or dislodged during the execution process.”

Smith alleges that failing to attend to those details “could result in the infiltration of oxygen inside the mask, thereby increasing time to unconsciousness and increasing the risk of dire consequences such as a vegetative state, a stroke, or the painful sensation of suffocation.”

Any of those things, were they to occur, would make Smith’s death unspeakably cruel.

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As is the case in many methods of execution challenges, Judge Huffaker presided over a contest of experts, with those called by Smith detailing all of the things that could go wrong in an execution under the state’s current protocol. Not surprisingly, the state’s expert witnesses reached just the opposite conclusions.

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Despite these conflicting accounts, the judge concluded that “uninterrupted introduction of pure nitrogen will result in nitrogen hypoxia and that nitrogen hypoxia will ultimately lead to death.” Of course, that conclusion begs the questions that Smith is posing, which are not about the properties of nitrogen, per se, but about the way it would be administered in his case.

Huffaker found that there was simply “not enough evidence to find with any degree of certainty or likelihood that execution by nitrogen hypoxia under the Protocol is substantially likely to cause Smith superadded pain short of death or prolonged death.” Then, in a shockingly cold-blooded way, the judge acknowledged that things could indeed go wrong but, in his words, “only if a cascade of unlikely events occurs.”

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After saying that, Huffaker returned to the question of novelty, recognizing that what Alabama wants to do amounts to a kind of human experimentation. Yet, as he put it, “novel methods of execution are not new to the federal courts,” and that the presence of novelty in an execution method could not and should not alter Smith’s “burden of showing that the method creates an unacceptable risk of pain.”

In the end, Huffaker’s refusal to ask more of the state when it seeks to use a new and controversial method of execution is both a moral and, in my view, legal mistake. Why shouldn’t someone facing execution have the same legal protection when the state seeks to innovate or experiment that the same person would have if they were the subject of an innovation or experiment in the course of their medical care?

I think the answer is that they should.

If Alabama wants to follow New York, Nevada, and Texas in pioneering a new method of execution, it, not Smith, should have to show that doing so will not render an execution cruel. In his case, it has not done so.

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A Federal Judge Trusts Alabama to Run an Experimental Execution. Horrible Decision.

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16.01.2024
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Alabama plans to experiment with nitrogen hypoxia, a previously untried method of execution, when it puts Kenneth Smith to death on Jan. 25. Experience has shown that when it comes to the death penalty, such experiments often go awry and produce disastrous consequences. Alabama’s scheduled execution of Smith may offer yet another tragic example of what happens when states trot out such methods. Yet, last week District Judge R. Austin Huffaker chose to disregard that risk and give Alabama the go-ahead.

Huffaker ignored the lessons of history and illustrated the Kafkaesque complexities and inhumanity of the law now governing the choice of execution methods.

Before looking closely at Huffaker’s disturbing opinion, it’s worth looking at other instances in which states have first tried new ways of putting people to death. Let’s start with New York’s late-19th-century decision to replace hanging with the electric chair.

It did so after a long period of studying different methods of execution and after being assured by experts that electrocuting someone would be a painless and humane way of carrying out a death sentence. After all that, on Aug. 6, 1890, its first use of the electric chair, in the execution of William Kemmler, went disastrously wrong.

According to the Death Penalty Information Center, in the run-up to his execution, Kemmler pleaded with corrections officers: “Don’t let them experiment on me more than they ought to.” But despite his pleas, the experiment went on.

The results, the center reports, were disastrous:

Advertisement

After an initial 17-second administration of high-voltage electric current, a doctor declared Kemmler dead. Then Kemmler let out a deep groan. … Reports of the execution say that “After 2 minutes the execution chamber filled with the smell of burning flesh. 2 of the witnesses fainted. Several others were overcome with severe attacks of nausea.” …Newspapers called the execution a “historic bungle” and “disgusting, sickening and inhuman.”

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Fast-forward three decades to 1924, the first time the gas........

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