By David M. Greenwald
Executive Editor
There are those who argue that the death penalty is about the victims. They would argue that some crimes are so horrific that execution is the only appropriate remedy.
There are of course problems with that argument.
As the Death Penalty Information Center has noted, “The death penalty is not reserved only for defendants who have committed what society considers the ‘worst-of-the-worst’ crimes.”
Former US Supreme Court Justice Stephen Breyer noted a number of factors that led to the unpredictability of death sentences and concluded, “[W]hether one looks at research indicating that irrelevant or improper factors—such as race, gender, local geography, and resources—do significantly determine who receives the death penalty, or whether one looks at research indicating that proper factors—such as ‘egregiousness’—do not determine who receives the death penalty, the legal conclusion must be the same: The research strongly suggests that the death penalty is imposed arbitrarily.”
Indeed, as death sentences have decreased—just 23 in 2023—only five states executed 
anyone, and one of those states was Alabama.
The notion of closure is often cited. But in a pioneering work by Jody Madeira, Killing McVeigh, the author conducted extensive interviews with 33 victims.
She concluded that closure was “a myth” but also noted there was no uniformity of victim desires and experiences.
“The author explains that while all the victims wanted McVeigh to be held accountable for the bombing in some way, they held diverse opinions on matters such as participation in the legal proceedings, including attendance at the trials, appropriate sentences, including capital punishment for McVeigh, and attendance at McVeigh’s execution,” she found.
The McVeigh execution is an interesting case study, not only because it presents a large number of victims, but also because it was relatively quick and therefore avoided the long and drawn-out process we see with many executions.
Research, as presented by Death Penalty Information Center finds, “Murder victims’ families hold a variety of views on the death penalty. Studies suggest the death penalty does not bring closure and interferes with their healing process.”
But there is something else I noticed this week in the lead up and aftermath of the execution of Kenneth Smith.
The focus was totally on the execution method and not at all on the victims.
There are a number of issues actually raised here that should be troubling. One is that the jury voted 11-1 to impose a life sentence. The judge overrode them. That’s not legal today, but apparently was not a reason for the court to retroactively rescind the death sentence.
The second issue was the fact that the state tried and failed to execute him previously.
In her dissent, Justice Sonya Sotomayor noted the failed execution and the impact of his November 2022 botched execution.
“It was Alabama’s third failed execution in a row in five months,” she wrote.
She adds, “Since that day, Smith has suffered from posttraumatic stress. Reliving those hours strapped to the gurney, his medical records confirm worsening bouts of nausea and vomiting over the past few weeks.”
She argued, “Alabama’s untested execution protocol will likely subject him to an unconstitutional risk of cruel and unusual punishment.”
Finally there was the issue that most media focused on—the nitrogen method of execution.
Justice Sonya Sotomayor noted, “Alabama plans to execute Kenneth Eugene Smith tonight by nitrogen hypoxia. That method is untested. Smith is the first person in this country ever to be executed in this way.”
Sotomayor described in detail the horrific manner of death, noting that once Smith is strapped into the chair and the nitrogen is flowing into the mask, “his executioners will not intervene and will not remove the mask, even if Smith vomits into it and chokes on his own vomit.”
That played out.
According to the Associated Press, Smith “appeared to shake and writhe on the gurney, sometimes pulling on the restraints” for at least two minutes, followed by several minutes of heavy breathing.
Another account noted, “Witnesses saw Smith struggle as the gas began flowing, with between two and four minutes of writhing and thrashing, and around five minutes of heavy breathing.”
Why wasn’t there a focus on the victim? Well, largely because the action that was taking place created focus on the conduct of the state.
That’s the problem with all executions—which are now rare and unusual. Even in cases where guilt is clearly established, you still have issues of arbitrary imposition of the death penalty, disproportionately falling on Black and brown people with white victims, and then you often have questions of fair representation, procedural issues, and, of course, mental competency.
It all adds up to the victim being forgotten in the process.
Take the NY Times which presented two articles on Friday following the execution.
One noted, “Fending off doubts and criticisms, Alabama’s attorney general hailed a new execution method as ‘humane and effective.’”
The Times notes, “Journalists who witnessed Mr. Smith’s execution on Thursday reported that he ‘shook and writhed’ for at least two minutes before beginning to breathe heavily. Lawyers for the state had said in court documents that he would lose consciousness within seconds.”
After the death of Smith, “the Alabama attorney general, Steve Marshall, hailed the execution as a ‘historic’ breakthrough. He criticized opponents of the death penalty for pressuring ‘anyone assisting states in the process.’”
“They don’t care that Alabama’s new method is humane and effective, because they know it is also easy to carry out,” he said in a statement.
Others, of course, have a different view.
Maya Foa, the joint executive director of Reprieve, a human rights group, offered a different view, noting “lethal injection had also been called ‘humane’ but has since been compared by federal judges to being waterboarded or burned at the stake.
“Executing states are constantly looking for ways to pretend that executions are medical and modern, not brutal and violent,” Ms. Foa said.
A second article, noted, “Alabama officials said the nation’s first nitrogen gas execution was a model for other states. Critics called it appalling and far from what the state promised.”
The focus in both articles which covered both sides of the issue fairly even-handedly of course omitted the crime and the victim.
That’s the problem. The US is among the only nations on this planet to execute people at this time—and most of the others are not countries we would like to be associated with.
If we are going to argue that the death penalty is for the victims—where is the evidence that the process allows any reasonable recognition of the victims and their suffering? Instead, the death penalty transfers the issue to the state and whether the state is acting appropriately—and, in many cases, it is not.
