Death-penalty states in the US are taking increasingly extreme steps to keep their execution chambers operating, despite growing anxiety among the American people that the practice of capital punishment is unfair.
This year, the number of states carrying out executions declined to a 20-year low. Just five states, Alabama, Florida, Missouri, Oklahoma and Texas, judicially killed prisoners.
Though capital punishment is receding into just a rump of largely southern states, those that still practice it are growing ever more aggressive. Some are turning to alternative execution methods to lethal injection, while others are shrouding the process in secrecy.
In 20 days’ time, barring a last-minute reprieve, Kenneth Smith will become the first person to be executed in the US using the untried and untested method known as nitrogen hypoxia. After a spate of gruesome botched executions – including several hours spent unsuccessfully trying to kill Smith on the gurney last year – the department of corrections has turned to an entirely experimental procedure that experts warn could subject the prisoner to further cruel and unusual punishment.
Alabama has set 25 January as Smith’s execution date, but the way they intend to kill him has been kept largely hidden from public view. The state’s protocol is heavily redacted, revealing only that Smith will have a mask strapped to his face through which nitrogen will be passed, depriving his body of life-sustaining oxygen.
The gas will be administered “for fifteen minutes or five minutes following a flatline indication on the EKG, whichever is longer”, the protocol states.
“This is an incredibly vague protocol, there’s nothing in it with any specificity that hasn’t been redacted. Even people familiar with nitrogen gas would have no idea what they’re talking about,” said Deborah Denno, a professor at Fordham law school who studies capital punishment protocols.
Alabama’s flirtation with nitrogen as an execution method is just the most glaring manifestation of a trend that is gathering pace among death-penalty states. Several are toying with alternative methods as a means of buying themselves flexibility.
Lethal injection, which has been the prevailing protocol since the 1970s, has been the subject of a years-long international boycott led by the UK and European governments along with pharmaceutical companies opposed to their medical products being used to kill people.
This year Idaho became the fifth state to authorize the firing squad, while Tennessee tried and failed to pass legislation that would also have adopted the technique. South Carolina responded to difficulties obtaining lethal drugs by shifting in 2021 to the electric chair and the firing squad as default.
With death penalty states adopting alternative killing methods, at least on paper, the US now has six different protocols on states’ books: lethal injection, electric chair, lethal gas including cyanide, firing squad, hanging and now Alabama’s nitrogen hypoxia.
“I don’t know any other country in the world which has as many execution methods as we do, even China,” Denno said. “I mean, six methods – who does that?”
Amid the plethora of execution methods, public concern is rising about the fairness of the death penalty. For the first time, a Gallup opinion poll in November found that 50% said the practice was unfair, compared with 47% fair.
Alongside the expansion into new killing techniques, death penalty states are making a renewed push to hide their practices in the hope of deflecting adverse public scrutiny. South Carolina has introduced a combination of alternative execution methods and secrecy in an attempt to revive its killing machine, which has been in abeyance since 2011.
The switch in its protocol to the electric chair and the firing squad made in 2021 was challenged by prisoners as a form of cruel and unusual punishment. The issue is still being adjudicated by the state’s supreme court. With that route temporarily blocked, the Republican-controlled legislature stepped up its efforts to hide what the department of corrections was doing in terms of hunting for lethal injection drugs.
In April, bills were passed that classify the identities of drug suppliers as state secrets and prevent the public from learning the composition of the execution team. In the wake of the legislation, the department of corrections announced it had finally procured sufficient quantities of the sedative pentobarbital to resume executions.
“Justice has been delayed for too long in South Carolina,” the Republican governor, Henry McMaster, said as he notified the courts that the state’s death chamber would soon be fired up again.
Idaho has also been taking exceptional measures to try to restart executions. Its new law that passed in March will give the department of corrections five days after a death warrant is issued to see whether it can proceed with lethal injections. If not, a firing squad will be convened.
The state has spent $750,000 of taxpayers’ money renovating a cell block at its maximum security prison for firing squad executions. The investment appears all the more striking given that there are only eight inmates on Idaho’s death row.
For the past few years, Idaho’s department of corrections has been attempting to kill Gerald Pizzuto, 66, for the double murders in 1985 of Berta Herndon and her nephew Delbert. The prisoner has faced five execution dates, despite the fact that he is terminally ill with bladder cancer and is under hospice care.
For Megan McCracken, a lawyer who has worked on capital cases and is deeply versed in execution methods, the combination of alternative protocols and secrecy amounts to death penalty states trying to have it their own way.
“The states are just trying to give themselves more options so they can do whatever they want without answering to anyone,” she said, before adding: “This is not about carrying out death sentences in a constitutional, legal and appropriate manner, it’s about getting the deed done.”
