Cruel and unusual punishment in Alabama
Perhaps our era will be remembered as the Age of Credulity.
Humans have always been prone to believe things that weren’t true. Our ancestors— with limited information— had certain excuses. We, on the other hand, are inundated by information, credible statistics, and video and audio documentation.
Yet even when we’re able to watch videotaped evidence of a mob breaking into our Capitol to overturn an election—smashing windows and doors, assaulting police officers, threatening to lynch the vice president—a former president can call it a peaceful protest, and credulous millions find him credible.
In our gullible age, even this can happen in Alabama: Kenneth Smith is strapped to a gurney and deprived of oxygen until he suffocates, and the state’s attorney general calls it a “textbook” execution and a model for other states to follow. “Alabama has done it,” he says, “and now so can you.”
We don’t have videotape of what actually occurred. (More on that below.) But we have this account from a person who attended the execution:
Lee Hedgepeth, reporting in his newsletter Tread, says that Smith, bound to a gurney, began to react immediately as nitrogen gas began to flow through the mask strapped to his face, depriving him of oxygen: “He began thrashing against the straps, his whole body and head violently jerking back and forth for several minutes.”
“Soon, for around a minute, Smith appeared heaving and retching inside the mask.”
Gradually, Smith’s struggle diminished, “though he continued to gasp for air. Each time he did so, his body lifted against the restraints.”
Finally, around 10 minutes after the nitrogen began to flow, “Smith made his last visible effort to breathe.”
Of course he did. This is what humans do when they are deprived of oxygen, our most essential need. Without oxygen humans struggle to breathe and will continue to struggle until they die. It’s common sense.
Alabama’s theory was that nitrogen gas would immediately render Smith unconscious, but the evidence demonstrates convincingly that it did not. And Alabama isn’t exactly an authority on capital punishment: In November it tried to kill Smith by lethal injection, but after an hour and a half of failed attempts to insert IVS, prison officials gave up and sent him back to death row.
It’s hard to escape this conclusion: Kenneth Smith suffered cruel and unusual punishment in violation of the Constitution.
Here are two options: We could abolish the death penalty. We’re good at killing, but we just can’t seem to get the death penalty right. We’ve never managed to apply it evenhandedly according to race, gender, social class and severity of the crime. The case for deterrence is weak. And we almost certainly execute innocent people from time to time.
The rest of the developed West rejected the death penalty long ago. We could join them instead of keeping company with the likes of China, Russia, Iran, North Korea and Saudi Arabia.
On the other hand, we could double down on the death penalty. Why get fancy with nitrogen gas and lethal injection? Our originalist Supreme Court would readily permit executions by hanging and firing squad, the methods of our Founders.
Furthermore, in those days executions were open to the public, but we haven’t had a public execution since 1936, when 20,000 people flocked to Owensboro, Kentucky, for a hanging.
The ratings for televised executions would be impressive—i predict organized watch parties and an All-execution Channel. Televised executions might seem macabre, but it’s better to confront the brutal realism of our use of capital punishment than to keep it hidden. Will we continue our enthusiasm for the death penalty or will it eventually disgust us? This is a way to find out.
In any case, constitutionally, executions would no longer be unusual.
And as we watch we can decide for ourselves whether it’s cruel to force a man to writhe at the end of a rope with a drop that’s just a little too short or to make him struggle desperately to breathe for the last 10 minutes of his life.