On Jan. 26th, inmate Kenneth Eugene Smith became the first prisoner to be executed by nitrogen gas, after a nearly 4 hour failed lethal injection attempt that occurred 14 months prior, according to CNN. Officials announced that the time of death was 8:25 p.m. local time with the Nitrogen gas running for about 15 minutes. Smith was sentenced to death for the 1988 murder for hire case of Elizabeth Sennett. Smith’s spiritual advisor, Rev. Jeff Hood said that the execution was “the most horrible thing I’ve ever seen.” Hood explained that Smith “popped up on the gurney” consistently, gasping and heaving as the nitrogen gas was administered. Alabama Department of Corrections Commissioner, John Hamm, commented that “there was some involuntary movement and some agonal breathing, so that was all expected and is in the side effects that we’ve seen and researched on nitrogen hypoxia.”
Over the last decade with a 7% rate of error, higher than any other previously used method, Smith is one of many prisoners that have suffered a botched execution. Furthermore, that percentage has increased. In 2010, Hospira, the only US manufacturer of sodium thiopental, one of the three main compounds utilized in the lethal injection drug, experienced production problems that lead to the terminus of its production. This domestic shortage of the drug, combined with the moral campaign abroad to end capital punishment, pushed prisons to find another means of caring out the sentence.
When it became official that Thiopental became extinct, states began to run through their existing supply of execution drugs before they expired. Arizona executed two inmates in the same month, which only happened once in 1999. Three inmates were executed in Missouri over three months and a petition was still under consideration in the Eighth Circuit for one of those inmates. Kentucky executed three inmates in the same day, only having executed three inmates in the three years prior. Most capital punishment states began experimenting with new drugs to replace the original three drug cocktail. Some were seeking to use a single drug to cause an overdose while others were trying to make a new three-drug cocktail; this directly led to an increase in botched executions. In 2014, the drug Midazolam was used on inmate Clayton Lockett in Oklahoma, causing a botched execution lasting 43 minutes, six times longer than a typical lethal injection execution. Ohio inmate, Dennis McGuire, took 25 minutes to die in a botched execution, consisting of a three-drug cocktail as well as the untested drug, Benzodiazepine, in 2019.
As Big Pharma was no longer an option, prisons turned to compounding pharmacies or “Small Pharma” to fulfill their needs. However, these compounding pharmacies are unregulated, leading to less reliable and contaminated drugs. In 2018, five of eleven inmates that were executed in Texas with contaminated drugs, complained of a burning sensation, with one inmate, Anthony Shore, screaming “I can feel it burning my insides.”
As capital punishment states began to look for other means to execute prisoners, some returned to old methods such as firing squad, electric chair and hanging. As of last week, Louisiana proposed a bill to add electrocution and nitrogen gas to their approved methods of execution, according to the Associated Press (AP). South Carolina’s supreme court also stood firm on capital punishment last week, reaffirming the authorization to use firing squad, electric chair, or lethal injection on an inmate. Hanging remains legal in New Hampshire in cases that the commissioner “finds it impractical” to use lethal injection. Inmates that are already on death row in the state could still face execution, however capital punishment has been out lawed in New Hampshire since 2019.
Prior to the extinction of Thiopental, lethal injection, if administered correctly took five minutes. Death occurring two minutes post the final injection and costed about ten dollars per execution. States have spent thousands in recent years acquiring replace drug cocktails: Between 2015 and 2020, Missouri spent over $160,000 on lethal injection drugs, spending $16,000 per the execution of ten inmates, according to the Guardian. During the COVID-19 pandemic, Arizona spent $1.5 million on lethal injection drugs, while Tennessee was averaging $100,000 per execution. Nevada exceeded $100,000 in court fees in two years defending itself in a lawsuit from a pharmaceutical manufacturer, who decried the usage and fraudulent procurement of their drugs for the purpose of execution.
In 27 states capital punishment is still legal and they will continue to find means, new and old, to carry out their execution sentences. Often untested and inhumane methods, botched executions will continue to rise if courts do not deem them, “cruel and unusual” as inmates’ lawyers on death row have argued.
By Dillin Bett