NEW YORK — A new analysis finds that as states expand death penalty practices, execution methods in the United States are becoming increasingly cruel, raising serious constitutional concerns under the Eighth Amendment. Deborah W. Denno, writing in Why Are Executions Becoming Crueler?, examines how methods such as nitrogen hypoxia and lethal injection are intensifying scrutiny over protections against cruel and unusual punishment and excessive fines.
According to Deborah W. Denno, “Kenneth Smith filed a Second Amended Complaint, which detailed the first failed execution by lethal injection, taking place on September 22, 2022.”
Notably, during the attempt to execute Smith, difficulties arose with the insertion of IV lines. As a result of this attempted execution, he was informed that the execution had been postponed.
Denno recommends that, in light of evolving execution methods, states should focus on understanding the shared beliefs and values held by society.
“The history of the American death penalty is characterized by the state’s repeated efforts to implement more humane methods of executing inmates, most derived from the precepts of the Eighth Amendment’s Cruel and Unusual Punishment Clause,” Denno stated.
As a result, Denno notes, each of the different execution methods demonstrates failure, despite being perceived as more humane than older methods. Following this, “Executioners are not exempt from retributive impulses, nor are legislators immune from the pressures to keep executions moving, no matter the consequences,” Denno explained.
Evidence shows that different methods of execution are used in 27 states that have the death penalty. In this case, “lethal injection is an option to some degree in all death penalty states, while some states also enable a choice between lethal injection and additional procedures,” Denno noted.
According to Denno, it was clear that the three lethal injection cases regarding Baze, Glossip and Bucklew were not sufficient to convince the court that lethal injection methods were unconstitutional.
With an increase in these botched executions, states are “moving away from lethal injection and either back to older techniques, such as electrocution and the firing squad, or forward to wholly new methods, such as nitrogen hypoxia,” as stated by Denno. However, these also come with their own limitations and obstacles.
According to Denno, “hanging was this country’s dominant death penalty method and socio-cultural symbol for centuries.” However, this method no longer exists due to “how hanging was perceived, both legally and societally, especially given the method’s horrific association with violence and racial lynching.”
Electrocution was another practice used, but “an improperly employed execution can cause an inmate to experience a slow and highly painful death.” Denno mentions that inmates would choose “a method created before the turn of the twentieth century,” like electrocution, because they are “aware of the decades of failed ‘medicalized substitutes,’ including lethal gas.”
The association of lethal gas with gas chambers from the Holocaust, although American gas chambers were imposed before the Nazi Holocaust, “impaired gassing’s reputation as a more humane method of execution in the U.S.”
Another practice that some inmates revert to in light of botched executions is the firing squad, which, according to a wide range of commentators, is seen as “the least inhumane execution.” However, it does come with its complications, such as in the case of Mikal Mahdi, where the executioners missed his heart.
Witness reports have stated that he “cried out and groaned” before he finally passed. Doctor Jonathan Ardan, M.D., who examined the body, found that Mahdi “experienced excruciating conscious pain and suffering for about 30 to 60 seconds after he was shot.”
Finally, some states have turned to finding new death penalty methods, such as nitrogen hypoxia. In the case of Kenneth Smith, his execution by nitrogen hypoxia “rapidly descended into disaster,” Denno stated. It was reported that he “remained conscious for several minutes” and was “‘gasping for air’ for four minutes, during which time he was ‘convulsing, he was writhing, the gurney was shaking noticeably.’”
This method “seemingly came out of nowhere to fulfill an immediate need to execute, devoid of any current knowledge or data about the human body.”
In general, “executions are becoming crueler, sloppier and more reckless in society’s quest to continue the death penalty.” Rather than relying on strong evidence of a method’s efficacy, “states are already blindly approving nitrogen gas and the firing squad to ensure the ongoing churn of executions.”
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