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capital punishment
US Supreme Court Refuses to Stop Alabama Nitrogen Gas Execution
"The death penalty is the ultimate cruel, inhuman, and degrading punishment, and we urge Alabama Gov. Kay Ivey to use her clemency power to stop the execution of Kenneth Smith before it's too late," said one group.
Jan 24, 2024
The U.S. Supreme Court on Wednesday denied an application to stop the execution of a man on Alabama's death row who is set to become the first person in the country to be killed with nitrogen gas in a method rejected by veterinarians for euthanizing animals and condemned by United Nations human rights experts as possible torture.
The justices rejected assertions by lawyers representing 58-year-old Kenneth Smith—who was convicted and sentenced to death for the 1988 murder of Elizabeth Sennett—that execution by the untested method of suffocation with nitrogen gas violates the U.S. Constitution's prohibition of "cruel and unusual punishment."
The attorneys' argument was based largely on the fact that Smith survived a botched attempt to execute him by lethal injection in November 2022.
Smith's petition for a writ of certiorari asked: "Does a second attempt to execute a condemned person following a single, cruelly willful attempt to execute that same person violate the prohibition against cruel and unusual punishments under the Eighth and 14th amendments to the United States Constitution?"
A separate challenge by Smith to the use of nitrogen gas in his execution is pending before the 11th U.S. Circuit Court of Appeals.
Two other states, Mississippi and Oklahoma, have approved the use of nitrogen gas for executions. States have scrambled to find alternative means of killing condemned inmates after the European Union banned the sale and export of lethal injection drugs in 2011.
Earlier this month, Ravina Shamdasani, a spokesperson for the United Nations Office of the High Commissioner for Human Rights, warned that the U.S. may be violating the Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment by allowing Smith's execution by nitrogen asphyxia.
Shamdasani noted that the American Veterinary Medical Association recommends sedating animals before euthanizing them with nitrogen—a step that is not included in Alabama's protocol.
In addition to concerns over the method of Smith's impending execution, advocates have also pointed to flaws in his sentencing process. The jury that convicted him in 1996 voted 11-1 to recommend a sentence of life imprisonment without the possibility of parole, but a judge invoked a since-outlawed rule to override the jurors.
Rights groups urged Alabama's Republican governor to halt Smith's execution—a move she declined in 2022.
"The death penalty is the ultimate cruel, inhuman, and degrading punishment, and we urge Alabama Gov. Kay Ivey to use her clemency power to stop the execution of Kenneth Smith before it's too late," Amnesty International implored Wednesday.
Abraham Bonowitz, co-founder of the abolitionist group Death Penalty Action, called Wednesday "a shameful day for our country."
"The discussion that is missing in all of this hubbub around nitrogen hypoxia is the mental torture of a second execution attempt," he added. "That, and the fact that if Kenny Smith were on trial today, he could not be sentenced to death at all because his jury was not unanimous regarding his sentence. Jury overrides were outlawed in Alabama in 2017. Alabama's capital punishment system as a whole is broken and cannot be trusted to get it right."
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UN Rights Experts Says Alabama Nitrogen Execution May Constitute Torture
"Rather than inventing new ways to implement capital punishment, we urge all states to put in place a moratorium on its use, as a step towards universal abolition," said the U.N. Human Rights Office.
Jan 16, 2024
As the United States insists on continuing state-sanctioned killings despite a European ban on drugs commonly used in capital punishment, the United Nations Human Rights Office warned Tuesday that Alabama officials may soon violate international laws banning torture as they plan to use nitrogen gas in an upcoming execution.
A number of U.N. officials have said in recent days that the planned execution of Kenneth Smith, who was convicted for a 1988 murder, should be halted as it likely will violate the U.S. Constitution's ban on cruel and unusual punishment. Smith is scheduled to face the death penalty at Alabama's Holman Correctional Facility on January 25, with authorities binding a mask to his face to forcibly administer nitrogen gas, which would deprive him of oxygen.
On Tuesday, Ravina Shamdasani, a spokesperson for the U.N. Office of the High Commissioner for Human Rights (OHCHR), said that by allowing the execution, the U.S. may also breach two international human rights treaties—the Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
"The death penalty is inconsistent with the fundamental right to life. There is an absence of proof that it deters crime, and it creates an unacceptable risk of executing innocent people," said Shamdasani. "Rather than inventing new ways to implement capital punishment, we urge all states to put in place a moratorium on its use, as a step towards universal abolition."
Pro-death penalty officials in the U.S. have in recent years sought to carry out executions using obsolete or untested methods, as the European Union has banned pharmaceutical companies from selling medications that can be used in capital punishment.
"What does it say about the morally-enervated condition of our political culture that the state of Alabama is so eager to try for a second time to kill someone... that it's willing to put the lives of a pastor and its prison execution team at risk?"
Experts say Smith would be the first person in the world to be killed via capital punishment using "asphyxiation with an inert gas."
A federal judge ruled last week that Alabama could proceed with Smith's execution using nitrogen. Smith had sued the Alabama Department of Corrections, arguing that the execution, if botched, could leave him in a permanent vegetative state or cause a stroke, and that the method carries the risk of "particular pain and suffering."
A previous attempt to execute Smith was botched by Alabama prison officials in 2022, when, as journalist Robyn Pennachia wrote at Wonkette, officials "spent hours and hours trying and failing to properly insert an IV while Smith was strapped to a gurney."
Shamdasani noted that Alabama's plan to execute Smith does not even meet the standards put forth by the American Veterinary Medical Association, which recommends sedating animals that are euthanized using nitrogen gas.
"Nitrogen gas has never been used in the United States to execute human beings," said Shamdasani. "Alabama's protocol for execution by nitrogen asphyxiation makes no provision for sedation of human beings prior to execution."
Mississippi and Oklahoma have also approved the use of nitrogen gas for executions in the absence of barbiturates for lethal injections, while Utah, South Carolina, and Idaho are among the states that have approved firing squads as a capital punishment method.
The U.N. Human Rights Committee, said Shamdasani, "has also criticized the use of asphyxiation by gas as an execution method, the use of untested methods, as well as widening the use of the death penalty in states that continue to apply it."
Amnesty International has pointed out that the jury that convicted Smith in 1996 supported life imprisonment without the possibility of parole, but a judge imposed a death sentence "under a judicial override system outlawed in Alabama in 2017."
As Jeffrey St. Clair wrote at Counterpunch last week, Alabama officials seem "uncertain about how the execution might unfold," and are requiring Smith's spiritual adviser, who is permitted to be in the execution chamber, to sign a waiver requiring him to stay three feet away from Smith due to the risk that "a hose supplying nitrogen to Smith's mask detaches from his face, filling an area around him with the potentially deadly odorless, tasteless, invisible gas."
"What does it say about the morally-enervated condition of our political culture that the state of Alabama is so eager to try for a second time to kill someone (whose own jury didn't think should be put to death in the first place) that it's willing to put the lives of a pastor and its prison execution team at risk?" wrote St. Clair. "Other states are eagerly awaiting the death notice from Holman Prison so that they can accelerate their stalled rosters of slated killings by using this ghastly new method. The execution of Kenneth Smith will signal yet another triumph of American efficiency culture, where death always seems to find a way."
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DeSantis Death Penalty Spree Fuels Surge in US Executions
The Florida governor approved the executions of six people this year, and the state imposed five new death sentences.
Dec 01, 2023
Florida governor and 2024 presidential candidate Ron DeSantis made a return to capital punishment in his state a key element of his "tough on crime" campaign messaging this past year, and the result was an overall increase in the use of the death penalty in the United States, according to a new annual report.
The Death Penalty Information Center (DPIC) found that although a majority of U.S. states—29 of them—have now either abolished the death penalty or enacted a moratorium on executions, the number of people killed by state governments rose from 18 in 2022 to 25 in 2023.
The group attributed the rise to Florida's return to capital punishment after a four-year hiatus, with DeSantis moving forward with the executions of six people—the highest number in the state since 2014.
The state's new pattern of putting Floridians to death showed no sign of slowing down in the coming year, as it also imposed five new death sentences—the most of any state in 2023.
The DPIC catalogued other laws signed by DeSantis this year as he joined the Republican presidential primary race, in which he is currently trailing former Republican President Donald Trump by more than 47 points, with an average of 12.6% of Republicans backing him according to the latest polls.
In April Florida passed a law allowing the state to execute people convicted of sexual battery of a child under the age of 12 in cases in which the victim is not killed—a law that conflicts with a 2008 U.S. Supreme Court ruling that struck down a similar statute in Louisiana.
DeSantis also approved a law giving Florida the lowest threshold in the U.S. for permitting juries to sentence a convicted criminal to death, allowing a death sentence if only eight out of 12 jurors agree. Only Alabama and Florida allow non-unanimous juries to impose a death sentence, and Alabama's threshold is 10 jurors.
Florida also holds the country's record for the highest number of exonerations from death row, with 30 people exonerated—the majority after being sentenced by non-unanimous juries.
"It should be hard to send someone to the death penalty," Randolph Bracy, a former Democratic Florida state senator who pushed to require a unanimous jury vote for death sentences, toldThe New York Times when DeSantis signed the bill. "Florida has the highest rate of wrongful convictions, I think, in the country. We needed that threshold to make sure that we were doing the right thing."
As DeSantis' policies led to an increase in executions in the U.S., the DPIC reported that the Florida governor is out of step with a growing number of Americans. For the first time this year, Gallup found that 50% of Americans believe the death penalty is administered unfairly, while only 47% believe it is used fairly.
"That important change can also be seen in the unprecedented show of support for death-sentenced prisoners from conservative lawmakers and elected officials this year, some of whom now oppose use of the death penalty in their state," said Robin M. Maher, executive director of DPIC.
Richard Glossip, who was convicted of a 1997 murder in Oklahoma and sentenced to death earlier this year, was issued a stay of execution in May after the state's Republican attorney general joined campaigners who had long advocated for Glossip's life to be spared.
The DPIC found that a majority of the people who were executed in 2023—79% of whom had impairments such as brain injuries, serious childhood trauma, or developmental disabilities—would likely not have received death sentences had they been tried today, "due to significant changes in the law, prosecutorial decision-making, and public attitudes over the past few decades."
"Today," said the group, "they would have powerful arguments for life sentences and decisions from juries who better understand the effects of mental illness, developmental impairments, and severe trauma."
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