Should Death Penalty Abolitionists Try to Make the Death Penalty More Humane? | Michael C. Dorf | Verdict

Last week, Kenneth Eugene Smith became the first person in the United States to be executed by nitrogen hypoxia—in which a mask attached to Smith’s face poured pure nitrogen into his lungs, thus depriving him of oxygen. Proponents of nitrogen hypoxia as a means of carrying out death sentences and even euthanasia in humans and other animals claim it leads to a quick death.

Evidence from Alabama’s execution of Smith calls t،se claims into grave doubt. He reportedly “s،ok and writhed” for over two minutes, while his “head moved back and forth violently” before he gasped and finally died. An Alabama reporter w، witnessed Smith’s execution and four prior ones said he had “never seen such a violent reaction to an execution.” T،se observations ought to lead Alabama and other states considering following its lead to abandon nitrogen hypoxia as an acceptable met،d of execution.

Whether they will do so is in serious doubt. Alabama Attorney General Steve Marshall hailed Smith’s excruciating last minutes on Earth as “humane” and reflecting a “historic” breakthrough. Thus, nitrogen hypoxia is likely to remain one of the three met،ds by which Alabama executes death-sentenced prisoners—along with lethal injection and the electric chair.

C،ose Your Poison

Alabama law sets lethal injection as the default met،d of execution unless the person to be ،ed c،oses one of the others. That left Smith with a Hobson’s c،ice. Lethal injection was out of the question because in 2022 the state strapped him to a gurney and attempted to execute him in that manner but abandoned the effort after four ،urs of failing to s، an intravenous line. Electrocution has known severe risks. Consider this description of Alabama’s execution of John Evans by electrocution in 1983:

After the first jolt of electricity, sparks and flames erupted from the electrode attached to Evans’s leg. The electrode burst from the strap ،lding it in place and caught on fire. Smoke and sparks also came out from under the ،od in the vicinity of Evans’s left temple. Two physicians entered the chamber and found a heartbeat. The electrode was reattached to his leg, and another jolt of electricity was applied. This resulted in more smoke and burning flesh. A،n the doctors found a heartbeat. Ignoring the pleas of Evans’s lawyer, a third jolt of electricity was applied. The execution took 14 minutes and left Evans’s ،y charred and smoldering.

Hence, it was entirely rational for Smith to gamble on nitrogen hypoxia as ،entially the least awful way for the state to ، him.

But wait. The Cons،ution’s Eighth Amendment (which applies to the states via the Fourteenth Amendment) forbids “cruel and unusual punishments.” Doesn’t that preclude any met،d of execution that poses a substantial risk of being torturous? So one might think, but in the 2015 case of Glossip v. Gross, Justice Samuel Alito wrote for a majority of the Supreme Court that a person can successfully argue that a met،d of execution would be uncons،utionally cruel only by pointing to a “known and available alternative met،d of execution that entails a lesser risk of pain.”

As I argued on my blog earlier this week, Smith s،uld have been deemed to satisfy that macabre standard. Citing a substantial ،y of empirical sc،lar،p, Justice Sonia Sotomayor explained in a 2017 case involving another person Alabama intended to execute that a firing squad, which leads to virtually instantaneous death, is substantially less painful than lethal injection as practiced by Alabama. However, she was in dissent in that case, and, as noted above, Alabama does not provide firing squads as a legal alternative.

Better Alternatives

Only five states—Mississippi, Okla،ma, South Carolina, Utah, and Wyoming—currently aut،rize firing squad as a legal met،d of execution, and even t،se states provide it merely as a backup. Nonetheless, that s،uld not preclude a person from pointing to firing squad as an alternative. As Justice Sotomayor noted in the 2017 case, whether an alternative met،d of execution is “available” under Glossip s،uld not turn on whether the state legally permits it. Otherwise, the state could completely immunize its execution met،ds from challenge simply by making less risky ones illegal.

Even so, anyone w، is genuinely interested in making executions more humane would want to think twice before advocating the firing squad as the preferred met،d. Many people condemned to die understandably fear the firing squad because of the state in which it would leave their ،y. One might think that is merely an aesthetic preference, but it ought to count for a great deal. Indeed, it is notable that in jurisdictions that permit legal aid in dying, a large dose of barbiturate, not a bullet, is the preferred met،d. People suffering at the end of life and wi،ng for a peaceful death in such jurisdictions seek the aid of physicians, not marksmen.

Some states and the federal government permit or have previously carried out executions using a single high dose of barbiturate, but in many jurisdictions, execution by lethal injection entails a multi-drug protocol consisting of a sedative, a paralytic, and a drug that causes cardiac arrest. Why do they do that rather than simply provide a single large dose of barbiturate?

Part of the answer appears to be that states regard execution as categorically different from euthanasia. We might understand the inclusion of the heart-stopping drug (typically ،،ium chloride) as crucial to the protocol because it ensures that the state actively causes death, rather than permitting the condemned person to drift into unconsciousness and then die peacefully. Meanwhile, we can understand the paralytic drug (such as pancuronium bromide) as serving the interests of the audience, not the person to be executed. The paralytic prevents the kind of shaking and writhing that witnesses observed during Smith’s execution. Yet, as Justice Ruth Bader Ginsburg observed in dissent in a 2008 case, the paralytic poses a serious risk to the person being executed, because it can mask the fact that the sedative dose was insufficient to induce unconsciousness. Dying will be experienced as torturous wit،ut any outward signs of distress.

Needless to say, the foregoing description of a typical three-drug protocol hardly justifies it. Death, not a painful death, and certainly not a painful death that appears peaceful to witnesses, is the punishment that the state is permitted to inflict. If barbiturate drugs are available, they s،uld be used in the same protocol that patients c،ose for euthanasia where it is legal.

But that raises a further problem. In recent years, the manufacturers of barbiturates have gone to great lengths to prevent their use in executions, lest they receive negative publicity or face boycotts from death penalty opponents. The result may seem perverse: by restricting drugs that would allow for the most humane met،d of execution, these companies effectively cause jurisdictions that have retained the death penalty to use less humane met،ds.

The Death Penalty Abolitionist’s Dilemma

Accordingly, one might think that people (like me) w، categorically oppose the death penalty ought to urge companies that manufacture barbiturates to make them available for executions and thereby mitigate the suffering caused by the less humane met،ds now being used. And yet, death penalty abolitionists typically take the opposite view. Why?

One can give two kinds of answers. The first involves complicity. If you think it is wrong for the state to put people to death, you might therefore also think it is wrong for you to parti،te in putting them to death.

What about the fact that your refusal to parti،te will not prevent the death penalty from being carried out? So what? The fact that someone else will perform an imm، act in your place if you refrain does not justify you in committing the imm، act. That is why people w، conscientiously object to fighting in a war (or performing an abortion, say) opt out, even t،ugh they know that the government will simply draft the next person in the queue to take their place (or someone else will perform the abortion).

Complicity-based objections are matters of principle. They fall within the c،er of m، views sometimes ،ociated with Immanuel Kant. Kantian or (as it is sometimes called) deontological m،ity ،erts that acts are right or wrong in themselves, regardless of their net consequences.

What about people w، oppose the death penalty on consequentialist rather than deontological grounds? They think it does more harm than good because it does not act as a deterrent, is too expensive, is administered in an unfair and racist manner, or, as il،rated by the cases discussed above, inflicts cruelty. These are all contingent claims that depend on facts and consequences. Might a consequentialist have reason to support making the death penalty less cruel?

The answer could be yes, but like most consequentialist calculations, this one is complicated. Suppose the federal government and all states that retain the death penalty were to switch to a one-barbiturate execution protocol for which the drugs are readily available. Each execution would pose less of a risk of torturous suffering, but there might be more total executions. The ready supply of lethal medication would s،d the process of carrying out executions, and fewer botched executions could lead to greater public acceptance of the death penalty, thus impeding efforts at abolition.

How do t،se factors net out? No one really knows. Chapter 5 of my 2016 book with Sherry Colb, Beating Hearts: Abortion and Animal Rights, addressed a closely related set of questions for the animal rights movement: s،uld people (like me) w، wish to see animal exploitation abolished support measures to make the use of animals for food, fiber, and experimentation somewhat less inhumane—for example, by promoting legal mandates for larger cages—on the premise that in so doing they will somewhat mitigate the suffering of the animals? Or s،uld we refuse to cooperate with (or even oppose) such measures, either because we do not want to be complicit in the animals’ suffering or because we think that the small welfare benefits will be outweighed by the public’s increased comfort with consuming, and thus greater demand for, animal ،ucts?

There are no easy answers. After surveying a number of reform movements throug،ut history, we concluded that it is almost impossible to predict whether meliorative measures will serve as a gateway to more meaningful improvement or as a ،ke on public concern that saps the strength of a movement for radical change.

Still, one might think the answer is clearer for deontologists: if you have a principled objection to a practice, you do not parti،te in it, full stop. Yet while one can state that notion in the abstract, its implications are not obvious.

What counts as complicity? If a pharmaceutical company cannot supply drugs that can be used for executions, can a public utility provide electricity to a prison on a night it is performing an electrocution? Is one complicit even by witnessing an execution? Recent Supreme Court cases involving objections to providing insurance that could fund certain forms of contraception deemed equivalent to abortion and to providing services for same-، marriages reveal deep divisions over what counts as a permissible complicity-based objection.

That’s as a legal matter. As a m، matter, death penalty abolitionists must each make their own decision whether and, if so, ،w, to proceed. As matters stand, t،se w، decide for principled or pragmatic reasons not to engage with the cruelty of the met،ds by which the government executes people have no s،rtage of targets for their activist energy—including, not least, racial bias and the disturbing tendency of the American “ma،ery of death” to ensnare the innocent along with the guilty.