Essay: America’s Nitrogen ExecutionsFrom Tragedy to Farce
This paper investigates capital punishment in America with particular emphasis placed on its latest permutation: execution via nitrogen hypoxia. A history of the US death penalty is followed by a delineation of the constitutional and international ramifications of the first nitrogen execution. Finally, the corporate-pharmaceutical side to the industry of death is examined. This triptych of analyses paints a striking image, one of the American death penalty’s hastening descent from tragedy into farce.
A History of the American Death Penalty
Capital punishment has taken on many faces over its centuries in the United States. In its colonial days the punishment was harsh and widespread in order to preserve social order, maintain authority, and deter crime.
The late 18th century saw the emerging Abolitionist movement challenge the death penalty’s morality and efficacy. Dr Benjamin Rush explored the realities of the death penalty in law, undermining contemporary dogma that it acted as a deterrent for crime. Rather, he demonstrated a “brutalization effect” which did the opposite. The wider western intellectual scene saw similar ferments, kickstarted by Beccaria’s spirited advocation of a more humane, rational, and proportional death penalty.
Into the 20th century capital punishment faced increased scrutiny, mounting legal challenges and shifting public attitudes culminating in a temporary moratorium on executions in Furman v Georgia (1972). This seemed a significant victory for the abolitionist movement.
The practice has always been in flux, varying particularly from state to state. As the 20th century wore on, and as a result of Furman, states took an even more divergent approach, some embracing reform or even abolition. Others, particularly Southern states, maintain the punishment despite intense criticism. Today’s debate on the constitutionality of execution methods and procedures is largely shaped by the landmark case Gregg v Georgia (1976), which upheld revised death penalty statutes.
In this maelstrom of capital punishment administration, nitrogen execution has emerged as an improved alternative to traditional methods, namely much maligned (botched executions, drug shortages, legal challenges, secrecy laws and delays) lethal injections. Backlash against the first such nitrogen execution in January 2024 indicates the transition to nitrogen, if one does eventuate, will not be simple.
Looking forward, the trajectory of the American death penalty appears to arc towards tighter restrictions. Public opinion continues to sway away from capital punishment, driven by concerns about fairness, effectiveness and human rights. The year 2022 proved to be a pivotal year given its 35% botched execution rate. An even more shocking record, Joe James Jr.'s three-hour Alabama execution, was also set. The ensuing moratorium on executions in Alabama, paired with the Governor’s acknowledgment of the need for a “top to bottom review”, would suggest a shift in approach from even the staunchest death penalty states. Whether that indicates a move away from capital punishment, or a move towards alternative methods such as nitrogen hypoxia, is yet to be seen.
Constitutional and International Reverberations
On the 25th of January 2024, Kenneth Eugene Smith was executed in Alabama via nitrogen hypoxia. Despite assurances from authorities, among them Alabama’s attorney general, Smith was not “unconscious within seconds”, and did not experience a “swift,painless and humane” death. Instead, he continued to thrash around on the execution gurney for “several minutes”, as should have been expected given the cruelty and
experimental nature of his execution. Attention has consequently been drawn to the mooted unconstitutionality of Smith’s execution, insofar as it violates the 8th Amendment, which asserts inter alia that “cruel and unusual punishments [shall not be] inflicted.”
A concomitant international backlash has steadily emerged, as foreshadowed by Associate Justice Sotomayor when she wrote “The world is watching” in her dissent to the Supreme Court’s decision to permit the execution. Experts appointed by the UN Human Rights Council agreed that Smith had been used as a “human guinea pig” in an act amounting to “nothing short of state-sanctioned torture.” The UN’s High Commissioner suggested that the execution “may amount to torture, cruel, inhuman or degrading treatment.” Moreover, the EU’s diplomatic service described the punishment as “particularly cruel and unusual”.
This furore rests as much on moral outrage as it does on grundnorm(s) of international law. Aside from quite possibly being unconstitutional, Smith’s execution violates two international conventions to which the US is both a signatory and plays a crucial role in enforcing. Signatories to the International Covenant on Civil and Political Rights, for instance, ensure (Article 7) that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” Article 16 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment contains analogous commitments. These documents, pillars of the international legal system, are being violated by their very creator.
The US plays far and away the most prominent role in admonishing other states on human rights violations. Experimental, cruel, and inhumane murder of the kind inflicted on Kenneth Smith, however, rightly serves only to undermine America’s capacity to maintain and make use of the moral high ground. America could be utilising such high ground in combatting human rights abuses, including those pertaining to capital punishment. Instead, it has again rendered itself complicit in their exacerbation. January 25 2024 bore witness to a tragedy, and more than a hint of farce.
Primer: Nitrogen asphyxiation executes by depriving the body of oxygen. A purportedly quick and painless procedure approved by multiple states, it is nevertheless opposed by a whole host of scientists and physicians on ethical grounds. Involving healthcare professionals in facilitating death unfailingly throws up cognitive dissonance challenges not dissimilar to those surrounding abortion and euthanasia. Furthermore the lack of transparency surrounding executions, e.g. the limited pool of potential witnesses, makes confidently challenging claims to delivering a swift and painless death exceedingly difficult.
Industrial-Pharmaceutical Facets of the Fight to Sanitise Capital Punishment
Leading manufacturers of medical-grade nitrogen gas have already planted the roots of an industrial boycott, following in the footsteps of the pharmaceutical companies that crippled lethal injections and, indeed, precipitated the perceived need for nitrogen hypoxia executions in Alabama, Louisiana, Mississippi and Oklahoma. The charge has been led by Airgas from as early as 2019, with Air Products also stating that it has “prohibited end uses for our products, which includes the use of any of our industrial gas products for the intentional killing of any person (including nitrogen hypoxia)”. They refuse to profit from ends contrary to the company’s very goal: to save lives; a familiar story to manufacturers of drugs such as Midazolam and other components of lethal injection cocktails.executions. They have become some of the most important, albeit unlikely, allies of anti-death penalty lawyers in the US. Since 2015, pharmaceutical companies have been under increasing pressure to place end-user limitations on their products in the face of litigation, public pressure, and lobbying from organisations such as Reprieve.
The accelerated response of leading manufacturers confirms an ill-kept secret: that the sanitisation of executions as a painless death is far from the truth, and that the writhing, excruciating death of Kenneth Smith can be expected to repeat itself as long as executions continue. One can only hope that the fate of nitrogen executions will echo that of lethal injections; that these will be the first blows in an industry wide boycott and a piece in the wider puzzle of finally putting an end to executions in the United States of America.
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Table of Cases
Furman v Georgia, 408 U.S. 238 (1972)
Gregg v Georgia, 428 U.S. 153 (1976)
Table of Legislation
Bill of Rights (1789)
Table of International Treaties and Conventions
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984) UNGA Res 39/46
International Covenant on Civil and Political Rights (adopted 16 December 1966) UNGA Res 2200 A(XXI) (ICCPR) (1966)
