Sentencing Law and Policy

South Carolina completes its second execution by firing squad

As reported in this local piece, "At 6:01 p.m., in a crack of rifle shots, Mikal Mahdi was executed inside of the Broad River Road Correctional Institution in Columbia, South Carolina, on Friday."  Here is more:  

Mahdi, who killed two people during a 2004 crime spree across four states, was sentenced to death after pleading guilty in 2006.

He chose to die by firing squad, making him just the second person in South Carolina to select that method of execution. He was just the fifth person in the United States executed by firing squad since 1976, when the U.S. Supreme Court re-instituted the death penalty...

On Friday afternoon, the U.S. Supreme Court declined to take up Mahdi’s appeal. Mahdi was sentenced to death in 2006 for the murder of off-duty Orangeburg Department of Public Safety captain James Myers. Mahdi ambushed Myers, 56, as the officer returned from celebrating his daughter’s birthday at the beach. Mahdi, 21 at the time, was hiding in a shed on Myers’ property in Calhoun County....

Just days before murdering Myers, Mahdi shot and killed a North Carolina gas station clerk, Christopher Boggs, over a can of beer and carjacked a vehicle in Columbia, South Carolina. The crime spree began only months after Mahdi was released from prison.

First Circuit Solicitor David Pascoe, who tried Mahdi, described him as “evil,” with “no regard for human life,” while Mahdi’s defense attorneys argued he was psychologically damaged by an abusive childhood compounded by long periods of isolation....

Violence followed Mahdi in prison. In 2009, Mahdi and another inmate stabbed a death row guard with improvised metal knives. The guard survived the stabbing, which took place inside of the Lieber Correctional Institution in Ridgeville. In an opinion upholding Mahdi’s sentence in a previous appeal, state Supreme Court Justice Jean Toal wrote, “in my time on this Court, I have seen few cases where the extraordinary penalty of death was so deserved.”

Florida completes its third execution in 2025

As reported in this AP article, a "Florida man convicted of killing a Miami Herald employee who was abducted on her lunch break was executed Tuesday evening." Here is more:

Michael Tanzi was pronounced dead at 6:12 p.m. following a three-drug injection at Florida State Prison for the April 2000 strangling of Janet Acosta, a production worker at the South Florida paper. The victim was attacked in her van, beaten, robbed, driven to the Florida Keys and then strangled before her body was left on an island.

In a final statement, his voice barely audible, Tanzi said, “I want to apologize to the family” and then recited a verse from the Bible before the drugs began flowing....

He was the third person executed in Florida this year.  Another lethal injection is scheduled May 1 under death warrants signed by Gov. Ron DeSantis.

After the execution, Acosta’s family members expressed relief that the ordeal was finally over. “It’s done. Basically, justice for Janet happened,” said her sister, Julie Andrew, who witnessed the execution. ”My heart felt lighter and I can breathe again.”...

Court records show Acosta was on a break on April 25, 2000, when she was attacked.  She was reading a book in her van when Tanzi approached, asked for a cigarette, and began punching her in the face, the records state.... “He drove to an isolated area in Cudjoe Key, told her he was going to kill her, and began to strangle her,” according to a summary by the state Commission on Capital Cases.  “He stopped to place duct tape over her mouth, nose and eyes in an attempt to quiet her and then strangled her.”

Acosta’s friends and co-workers reported her missing after she failed to return from her break.  That led police to her van, which Tanzi drove to Key West.  Police said Tanzi confessed to the crime and showed investigators where he had left Acosta’s body on Cudjoe Key, more than 140 miles (225 kilometers) southwest of Miami....

Tanzi was convicted of first-degree murder, carjacking, kidnapping and armed robbery, drawing a 12-0 jury recommendation for the death penalty.  All of his subsequent appeals were unsuccessful, including a late request for a stay of execution rejected Tuesday afternoon by the U.S. Supreme Court.  The Florida Supreme Court also recently rejected his claim he shouldn’t be executed because he was “morbidly obese” and had sciatica, raising the risk of unconstitutional levels of pain.

Reviewing evolving execution methods in the states

Law360 has this lengthy new piece, headlined "La.'s First Nitrogen Execution Reflects Broader Method Shift," which discusses recent state execution method trends.  Here are a few excerpts:

Louisiana's adoption of the nitrogen gas method is part of a broader shift to alternatives to lethal injections, which have faced intense judicial scrutiny as well as a shortage of raw materials needed to carry them out, resulting in hiatuses in executions in several states. Overall, states with capital punishment have signaled an intention to restart their execution programs, some of which have stalled for years, and for some states this involves shifting to new methods.

In January 2024, Alabama became the first jurisdiction in the world to use nitrogen gas, and has since used it to execute four people. Mississippi and Oklahoma also allow for the method but have yet to use it.... On March 7, South Carolina executed Brad Sigmon, a man convicted of murder, by firing squad — the first time the state used that method. His execution marked the first time in 15 years such a method was used to kill a prisoner....

Sigmon's execution signaled an expansion of the use of firing squads, and other states might soon embrace it. Utah, Oklahoma, Mississippi, South Carolina and Idaho currently authorize the firing squad as an execution option.

Utah is the only state that has long allowed firing squads and has used it during the 20th century. Oklahoma and Mississippi added it as a backup method in the 2010s, while South Carolina legalized it in 2021 as a way to resume executions when drugs are unavailable. Idaho adopted it in 2023 for similar reasons.

Oklahoma executes man not objecting to his execution 20 years after capital murder

As detaled in this local article, "Oklahoma carried out its first execution of 2025 on Thursday, giving a lethal injection to a confessed killer who had said in his first interview with police that he wanted the death penalty."  Here are some of the notable details:

Wendell Arden Grissom, 56, was pronounced dead at 10:13 a.m. at the Oklahoma State Penitentiary. "I consider this a mercy. It's going to be all right," he said in his last words after apologizing and asking for forgiveness from "all of you that I hurt." He did not seek any emergency stays in court and did not speak at his clemency hearing in February. He told Newsweek on Monday, "I don't want to spend the rest of my life in here."...

Grissom was executed for fatally shooting a woman during a 2005 home invasion in rural Blaine County. The victim, Amber Dawn Matthews, 23, was at the isolated home near Watonga helping a friend, Dreu Kopf, pack for a move the next day. Matthews was shot the first time in the back of the head while holding her friend's newborn baby, Gracie. She was shot again in the forehead after collapsing to the floor. Kopf also was shot but survived....

The execution was the 16th in Oklahoma since lethal injections resumed in October 2021 after a long hiatus brought about by drug mix-ups and botched procedures. It took only 10 minutes to complete. "This was probably as flawless of an execution that we've had in terms of the process," said Steven Harpe, the Oklahoma Department of Corrections' executive director....

The execution was carried out before more than 20 family/victim witnesses, including Kopf, her two daughters, and Matthews' father. A spiritual adviser from California, Mary Meyer, prayed at Grissom's feet in the execution chamber.

In his lengthy last statement, Grissom said he was under the influence of drugs and alcohol at the time of the shooting. "It's still my fault," he added. "I'm not who I made myself look like that one day." He said he did not deserve forgiveness but prayed that "you all can forgive me, not for my sake, for your sake." He added that "it is the only way you will find God in this."

With the four executions completed in four states this week, the US has now carried out a total of 10 executions nationwide faster in 2025 than in any year since 2015.  But, this is still a relatively slow pace in recent US history, as there were 30 executions in the US before the end of March in 1999.  It will be interesting to see if the current pace of executions in 2025 continues throughout the year.

Louisiana completes its first execution in 15 years and its first by nitrogen gas

As reported in this local article, "Louisiana executed death row prisoner Jessie Hoffman on Tuesday evening, killing him with nitrogen gas, a method never before used in the state." Here is more:

The execution was Louisiana's first in 15 years. Hoffman was convicted in the 1996 murder and rape of Mary "Molly" Elliott, a 28-year-old advertising executive who was abducted the day before Thanksgiving and shot in rural St. Tammany Parish....

Shortly before Hoffman was set to be executed, a closely divided U.S. Supreme Court rejected a request from his attorneys to issue a stay in his case. Hoffman had argued to them that breathing nitrogen gas would violate his Buddhist beliefs.

U.S. Supreme Court Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson disagreed with the majority decision and said they would grant a stay for Hoffman. Justice Neil Gorsuch also wrote a dissent, saying both the federal district and appeals courts in Hoffman's case should have considered his claim about the execution method violating his faith under the Religious Land Use and Institutionalized Persons Act.

The Supreme Court order denying a stay, with Justice Gorsuch's short written dissent, is available at this link.

Split Fifth Circuit panel vacates preliminary injunction to allow Louisiana to move forward with nitrogen gas execution

As reported in this post a few days ago, a federal district judge entered a temporary injunction to prevent Louisiana from moving forward next week with it first nitrogen gas execution.  That order was swiftly appealed to the Fifth Circuit, and late yesterday a Fifth Circuit panel, by a 2-1 vote, vacated that injunction via this opinion.  Here is how the seven-page majority opinion begins:

Jessie Hoffman is scheduled to be executed by nitrogen hypoxia on March 18, 2025.  The district court has now entered a preliminary injunction preventing Louisiana state officials from carrying out his execution on the ground that death by nitrogen hypoxia violates the Eighth Amendment.

The preliminary injunction is not just wrong.  It gets the Constitution backwards, because it’s premised on the odd notion that the Eighth Amendment somehow requires Louisiana to use an admittedly more painful method of execution —namely, execution by firing squad rather than by nitrogen hypoxia.  That can’t be right.  Indeed, it contravenes Supreme Court precedent.  We accordingly vacate the preliminary injunction. 

Here is how the two-paragraph dissent by Judge Haynes begins:

I think the district court properly exercised its discretion in granting a preliminary injunction given the limited amount of time Hoffman had to challenge his execution by nitrogen hypoxia, which is new in Louisiana.  The district court fully explains all the efforts made: Hoffman tried throughout and did not wait until the last minute.  Instead, the state did not let him challenge earlier.  The timeline in which he could challenge it and the setting of his execution date, which is March 18, all happened within the last month.  As the district judge thoroughly discusses, there are issues that need more time to be resolved and decided.  Obviously, that cannot be done once he is dead.  While I am not suggesting a long time, I do think granting a preliminary injunction to allow some additional time to further review and address the method of execution (in addition to the other reasons given by the district court) is not an abuse of discretion by the district court.

I assume the defendant here will seek en banc review in the Fifth Circuit and that this matter will get to the Supreme Court thereafter.  I also assume that the execution is now much more likely to go forward on March 18.

Prior related post:

• Federal judge temporarily halts Louisiana's plans to conduct execution by nitrogen gas 

Lots of notable execution news and notes around the US

With a notable number of new executions scheduled, and notable new execution methods being utilized or considered in a number of states, the application of capital punishment in the United States is generating even more than its usual number of headlines.  Here are a few of the more recent stories and commentaries catching my eye:

From the AP, "A look at the status of US executions in 2025"

From the AP, "Arizona prisoner set to be executed next week passes up chance to ask for reprieve"

From The Atlantic, "The Way of the Gun: Death by firing squad has come back to America."

From The Guardian, "America’s next killing spree: 10 days, five states, six death-row prisoners set to die"

From the Idaho Capital Sun, "Idaho will be only state with firing squad as main execution method, after governor signs bill"

From NOLA.com, "Chefs, artists, business owners come out against Louisiana execution using nitrogen gas"

From Slate, "We’re Really Doing Execution by Firing Squad Again?"

From USA Today, "Texas, Louisiana both halted imminent executions on Tuesday. What's going on?"

Federal judge temporarily halts Louisiana's plans to conduct execution by nitrogen gas

As reported in this NBC News piece, a "federal judge on Tuesday temporarily blocked Louisiana's first execution in 15 years after lawyers for the condemned man argued a new method known as nitrogen hypoxia would violate his constitutional rights." Here is more:

The inmate, Jessie Hoffman Jr., 46, said the use of a mask to deliver only nitrogen gas, depriving him of oxygen, "substantially burdens" his ability to engage in his Buddhist breathing practices and creates "superadded pain and suffering." Hoffman's execution, scheduled for March 18, was set to be the first in Louisiana using nitrogen hypoxia.

Chief U.S. District Judge Shelly Dick of the Middle Louisiana District ruled in partial favor of Hoffman, writing that it is in the "best interests of the public" to be able to examine the state's "newly proposed method of execution on a fully developed record." She said she was particularly troubled that the state released only a redacted protocol to the public until the day before the preliminary injunction hearing Friday.

"The public has paramount interest in a legal process that enables thoughtful and well-informed deliberations, particularly when the ultimate fundamental right, the right to life, is placed in the government's hands," she wrote. She said Hoffman cannot be executed until his claims are "decided after a trial on the merits and a final judgment is issued."

Attorney General Liz Murrill posted on X that "we disagree with the district court's decision and will immediately appeal to the Fifth Circuit," which her office did....

In 1996, Hoffman was 18 when, prosecutors say, he abducted his victim, Mary Elliott, at gunpoint from a New Orleans parking garage on the night before Thanksgiving Day, forced her to withdraw $200 from an ATM, then raped and shot her to death.

State Corrections Secretary Gary Westcott selected nitrogen hypoxia as Hoffman's method of execution. Last year, the state legalized the use of nitrogen gas in addition to the more widely used method of lethal injection, but officials have had trouble procuring the necessary lethal injection drugs since the state’s last execution in 2010. More than 50 people are on Louisiana's death row.

Alabama has had similar trouble sourcing lethal injection drugs, and last year it became the first state to administer nitrogen hypoxia. It has executed four prisoners using the method, one of them last month.

Louisiana corrections officials said they traveled to Alabama to study how its nitrogen system functions. Louisiana subsequently built a nitrogen hypoxia facility at the Louisiana State Penitentiary in Angola consisting of an execution chamber, a valve and storage room, and an observation area. The state said in a court filing Sunday that "breathing in the mask is 'very comfortabl[e]'" and that "the mask is very similar, if not identical, to the one used in Alabama's system."

UPDATE: The 29-page ruling by Chief Judge Dick is available at this link.  It will be interesting to see how and how quickly the Fifth Circuit ruling on this matter and whether and when it may come before the US Supreme Court.

South Carolina completes first firing squad execution in US in 15 years

As reported in this AP piece, a "South Carolina man who killed his ex-girlfriend’s parents with a baseball bat was executed by firing squad Friday, the first U.S. prisoner in 15 years to die by that method, which he saw as preferable to the electric chair or lethal injection." Here is more:

Three volunteer prison employees used rifles to carry out the execution of Brad Sigmon, 67, who was pronounced dead at 6:08 p.m.  Sigmon killed David and Gladys Larke in their Greenville County home in 2001 in a botched plot to kidnap their daughter. He told police he planned to take her for a romantic weekend, then kill her and himself.

Sigmon’s lawyers said he chose the firing squad because the electric chair would “cook him alive,” and he feared that a lethal injection of pentobarbital into his veins would send a rush of fluid and blood into his lungs and drown him.  The details of South Carolina’s lethal injection method are kept secret in South Carolina, and Sigmon unsuccessfully asked the state Supreme Court on Thursday to pause his execution because of that.

On Friday, Sigmon wore a black jumpsuit with a hood over his head and a white target with a red bullseye over his chest.  The armed prison employees stood 15 feet (4.6 meters) from where he sat in the state’s death chamber — the same distance as the backboard is from the free-throw line on a basketball court.  Visible in the same small room was the state’s unused electric chair.  The gurney used to carry out lethal injections had been rolled away.

The volunteers all fired at the same time through openings in a wall.  They were not visible to about a dozen witnesses in a room separated from the chamber by bullet-resistant glass.  Sigmon made several heavy breaths during the two minutes that elapsed from when the hood was placed to the shots being fired.  The shots, which sounded like they were fired at the same time, made a loud, jarring bang that caused witnesses to flinch.  His arms briefly tensed when he was shot, and the target was blasted off his chest.  He appeared to give another breath or two with a red stain on his chest, and small amounts of tissue could be seen from the wound during those breaths....

Since 1977 only three other prisoners in the U.S. have been executed by firing squad.  All were in Utah, most recently Ronnie Lee Gardner in 2010.  Another Utah man, Ralph Menzies, could be next; he is awaiting the result of a hearing in which his lawyers argued that his dementia makes him unfit for execution....

Supporters and lawyers for Sigmon asked Republican Gov. Henry McMaster to commute his sentence to life in prison. They said he was a model prisoner trusted by guards and worked every day to atone for the killings and also that he committed the killings after succumbing to severe mental illness.  But McMaster denied the clemency plea. No governor has ever commuted a death sentence in the state, where 46 other prisoners have been executed since the death penalty resumed in the U.S. in 1976.  Seven have died in the electric chair and 39 others by lethal injection.

Might five US states complete six executions in March 2025?

This new USA Today piece highlights that a trio of states that have not conducted many executions recently are scheduled to carry out death sentences next month:

Louisiana's execution of Christopher Sepulvado on March 17 would mark the end of a 15-year break in executions in the state, which plans to use nitrogen gas.  Arizona's execution of Aaron Gunches on March 19 would be the first in the state since 2022, when the state struggled to carry out three executions.  Meanwhile South Carolina is set to execute its fourth inmate since September, when the state reinstated the practice after a 13-year pause.

In addition, accourding to the Death Penalty Information Center's Upcoming Executions page, Oklahoma and Texas have an execution scheduled in March, and Louisiana actually two executions scheduled on back-to-back days in mid-March.

If all six of these scheduled executions go forward, March 2025 will have more executions completed in the US than in over a decade.  The last month with six executions, based on my scan of the DPIC's execution database, was back in January 2015.  And if all ssx scheduled execution are completed, the US will have completed as many executions in the first three months of 2025 as it did in all of 2021 (which set a modern historic low for US executions in one year). 

After fairly steady declines in the number of yearly executions in the 2000s and and 2010s, the 2020s have so far seen a notable (though still modest) uptick in yearly executions since the modern low in 2021.  Time (and litigation) will tell if that trend will continue in 2025 and beyond. 

Texas completes its second execution of 2025 of man involved in multiple murders

As reported in this AP piece, a " Texas man who killed his strip club manager and another man, then later prompted a massive lockdown of the state prison system when he used a cellphone smuggled onto death row to threaten a lawmaker, was executed Thursday night." Here is more:

Richard Lee Tabler, 46, was given a lethal injection at the state penitentiary in Huntsville. He is the second person executed in Texas in a little over a week, with two more scheduled by the end of April. The time of death was 6:38 p.m. CST.

Tabler was condemned for the Thanksgiving 2004 shooting deaths of Mohammed-Amine Rahmouni, 28, and Haitham Zayed, 25, in a remote area near Killeen in Central Texas. Rahmouni was the manager of a strip club where Tabler worked until he was banned from the place. Zayed was a friend of Rahmouni, and police said both men were killed in a late-night meeting to buy some stolen stereo equipment that was actually a planned ambush.

Tabler also confessed to killing two teenage girls who worked at the club, Tiffany Dotson, 18, and Amanda Benefield, 16. He was indicted but never tried in their killings.

Tabler had repeatedly asked the courts that his appeals be dropped and that he be put to death. He also has changed his mind on that point several times, and his attorneys have questioned whether he is mentally competent to make that decision. Tabler’s prison record includes at least two instances of attempted suicide, and he was previously granted a stay of execution in 2010....

Tabler’s death row phone calls in 2008 to state Sen. John Whitmire, who is now the mayor of Houston, prompted an unprecedented lockdown of more than 150,000 inmates in the the nation’s second-largest prison system. Some were confined to their cells for weeks while officers swept more than 100 prisons to seize hundreds of items of contraband, including cellphones.

Whitmire led a Senate committee with oversight of state prisons, and said at the time that Tabler warned him that he knew the names of his children and where they lived. Whitmire, through a spokesperson at the mayor’s office, declined to comment on Tabler’s pending execution.

The ACLU appealed Tabler’s case to the U.S. Supreme Court last year, claiming he was denied adequate legal representation during his lower court appeals by attorneys who refused to participate in hearings at what they said was his request....

Tabler recruited a friend, Timothy Payne, a soldier at nearby Fort Cavazos, and lured Rahmouni and Zayed to a meeting under the guise of buying the stolen stereo equipment. Tabler shot them both in their car, then pulled Rahmouni out and had Payne video him shooting Rahmouni again.

Tabler later confessed to the killings. During the sentencing phase of his trial, prosecutors introduced Tabler’s written and videotaped statements saying he also killed Dotson and Benefield days later because he was worried they would tell people he killed the men.

Florida completes its first execution of 2025 of murderer of a couple 28 years ago

As reported in this AP piece, a "Florida man convicted of killing a husband and wife at a remote farm in an attack witnessed by the couple’s toddler was put to death Thursday in the state’s first execution of the year."  Here is more:

James Dennis Ford, 64, was pronounced dead at 6:19 p.m. following a lethal injection at Florida State Prison. He was convicted of the murders of Gregory Malnory, 25, and his wife Kimberly, 26, who were killed during a 1997 fishing trip at a sod farm in southwest Florida’s Charlotte County where court records showed both men worked.

Ford had nothing to say Thursday evening to about 25 witnesses present for the execution. He was strapped on a gurney as the three-drug injection began, at first his chest heaving and then slowly nothing more. A few minutes later a staffer shook him and yelled “Ford! Ford!” to see if he was still conscious. There was no response.

At the time of the killings, the couple’s 22-month-old daughter witnessed the attack while strapped in a seat in the family’s open pickup truck. She survived an 18-hour ordeal before workers came upon the crime scene and found the girl covered in her mother’s blood and suffering from numerous insect bites, according to investigators.

The daughter, Maranda Malnory, recently told Fort Myers television station WBBH that she had no recollection of what had happened and only remembers her parents through photos and the memories of others. “I told one of my grandmas the other day you grieve the people you knew,” she said. “But I grieve what could have been.”

Ford’s execution was the first in Florida in 2025. One person was put to death in 2024, down from six in 2023, when Gov. Ron DeSantis was campaigning for the Republican presidential nomination. During the previous three years, the governor didn’t sign off on any executions. He signed Ford’s death warrant in January....

Court documents show Ford attacked Gregory Malnory after the group arrived to go fishing, shooting him in the head with a .22-caliber rifle, beating him with an axe-like blunt instrument and finally slitting his throat. Kimberly Malnory was beaten, raped and then shot with the same rifle, authorities had said.

Ford initially told investigators that the Malnorys were alive when he left them to go hunting, suggesting someone else killed them. Prosecutors said in a court filing that there was “overwhelming proof that Ford was responsible for the murders and the rape.”...

The U.S. Supreme Court denied Ford’s final appeal Wednesday without comment. Ford’s lawyers had filed numerous appeals since his sentencing, all unsuccessful. Recently the Florida Supreme Court rejected claims that his IQ of about 65 at the time of the murders put him in an intellectually disabled category with a mental age then of about 14 — therefore ineligible for execution, court documents show.

Louisana poised to resume executions with nitrogen gas protocol

As reported in this local article, "Louisiana has approved a protocol for executions by nitrogen hypoxia, which will allow death sentences to be carried out again after nearly 15 years, Gov. Jeff Landry said Monday."  Here is more:

Louisiana has not carried out the death penalty since 2010.

In an execution by nitrogen hypoxia, the inmate's face is covered by a mask and pure nitrogen is pumped in instead of oxygen, causing death by asphyxiation.

“These capital punishment cases have been reviewed at every judicial level, have had decades of unsuccessful appeals, and the death sentences affirmed by the courts,” Landry said in the release. “I expect our DA’s to finalize these cases and the courts to move swiftly to bring justice to the crime victims who have waited for too long.”

The Louisiana Legislature passed a law permitting nitrogen hypoxia executions in the second 2024 special session, amid a shortage of lethal injection drugs. State Rep. Nicholas Muscarello, R-Hammond, sponsored the law, which also added electrocution to the list of state-sanctioned execution methods.

Louisiana stopped using electrocution to carry out the death penalty 34 years ago. Legal challenges and reports of burns on the bodies of those executed helped pressure the state to retire its electric chair.

It is unclear if and when an execution will take place. 57 people currently sit on death row, according to Cecelia Kappel of the Capital Appeals Project, a nonprofit law firm that represents all defendants facing the death penalty who would otherwise have a public defender....

State Attorney General Liz Murrill, who has typically been in lockstep with Landry on criminal justice issues, praised the state's move toward resuming executions. "Those sentenced to death have been convicted by a jury of their peers for the most heinous and barbaric crimes imaginable. These are the worst of the worst," she said in a statement. "Governor Landry and I are committed to moving this process forward to finally get justice for victims."...

Landry's office included a brief summary of the new execution protocol along with the news release, saying it "builds upon Alabama's constitutionally approved method." The condemned person will have access to a spiritual adviser. "Designated victim relationship witnesses" and media will be authorized to observe so long as it is in accordance with Louisiana law.

Alabama completes its fourth execution by means of nitrogen gas

As reported in this local article, "Alabama Death Row inmate was executed tonight for the 1991 slaying of a woman in her Birmingham apartment, who he admitted killing after he got tired of hearing her beg for her life."  Here is more:

Demetrius Terrence Frazier was executed at the William C. Holman Correctional Facility in Atmore. The 52-year-old was put to death by inhaling pure nitrogen gas through a gas mask. He is the fourth inmate in Alabama — and the country — to be executed using that method. It is Alabama’s first execution for 2025 after having led the nation in 2024 with six executions - by either lethal injection or nitrogen gas....

Though Frazier’s execution was punishment for the 1991 slaying of Pauline Brown, he was also serving a life sentence in Michigan for the 1992 killing of a teenager. He was brought to Alabama to await execution in 2011.  Frazier’s lawyers were hoping that before Frazier was escorted into the execution chamber, Michigan Gov. Gretchen Whitmer would ask Alabama to halt the execution and send the inmate back north. That didn’t happen....

Prior to being transferred to the Yellowhammer State in 2011, Frazier was serving multiple life sentences in Michigan for sex crimes and the murder of a 14-year-old girl. Frazier’s lawyers argued that his transfer to Alabama Death Row was illegal, and he should have been serving his life sentences up north. While that battle is no longer being waged in court, Frazier was hoping the Michigan governor would step in. But the Detroit News reported that Whitmer said this afternoon that it was out of her hands.

Brown was a daughter, sister, mother, and had recently become a grandmother. She had worked for 20 years as a cook at Bama Foods. Her life ended in the early morning hours of November 27, 1991, when she was raped and shot in the back of the head. She had been discussing with her mom the plans for Thanksgiving, which was only two days away.

AG Garland rescinds federal execution protocol citing "risk of pain and suffering" in using pentobarbital for lethal injection

Via this new substack post by Chris Geidner, I see that Attorney General Merrick Garland sent this letter to the Director of the Bureau of Prisons to order rescinding the the federal execution protocol "which provides for lethal injection of pentobarbital."  The two-page letter provides this accounting for the action:

The Office of Legal Policy has coordinated review of the [protocol] and the Department's regulations governing the manner of execution, including, as directed by the 2021 Memorandum, in "consultation with all relevant Department components, including the Bureau ofJustice Statistics, Bureau of Prisons, Drug Enforcement Administration, Civil Division, Civil Rights Division, Criminal Division, National Institute ofJustice, and U.S. Marshals Service; other state and federal agencies, including the Department of Health and Human Services; medical experts; experienced capital counsel; and other relevant stakeholders, including members ofthe public, as appropriate."   Having assessed the risk of pain and suffering associated with the use ofpentobarbital, the review concluded that there is significant uncertainty about whether the use ofpentobarbital as a single-drug lethal injection for execution treats individuals humanely and avoids unnecessary pain and suffering.

Because it cannot be said with reasonable confidence that the current execution protocol "not only afford[ s] the rights guaranteed by the Constitution and laws ofthe United States" but "also treat[s] individuals [being executed] fairly and humanely," [2021 AG Memo on Death Penalty] at 1, that protocol should be rescinded, and not reinstated unless and until that uncertainty is resolved. In the face of such uncertainty, the Department should err on the side oftreating individuals humanely and avoiding unnecessary pain and suffering.

The 25-page report of the Office of Legal Policy serving as the foundation of this action is available at this link.

Of course, the incoming Trump Administration can and likely will reconsider these actions and institute a new (or renewed) execution protocol.  But, Prez Biden's commutation of 90%+ of federal death row left only three persons currently subject to execution and none of them has exhausted all of their appeals.  Thus, AG Garland's action may not have any immediate impact on execution possibilities, though it means some more work for any future adminstration seeking to complete any executions.

Also, because there is always considerable state-level litigation over execution protocols, this AG letter and the OLP report could prove of some consequence in some state courts.  It certainly will be cited by death row defendants seeking to preclude use of of pentobarbital in executions.

Indiana completes execution of mass murderer, its first since 2009

As reported in this USA Today article, "Indiana has executed its first inmate in 15 years, as Joseph Edward Corcoran was declared dead before sunrise on Wednesday morning." Here is more:

Corcoran, 49, was convicted in 1999 for the 1997 quadruple murder of his older brother, sister's fiancé and their two friends. He committed the homicides with a semi-automatic rifle, and at the home he lived in with his older sister and brother in Fort Wayne, Indiana.

Corcoran, who was 22 at the time, killed his brother, 30-year-old James Corcoran; his sister's fiancé, 32-year-old Robert Scott Turner; and their two friends, 30-year-old Timothy Bricker and 30-year-old Douglas Stillwell.

Before Corcoran's execution, his attorneys filed a request at the Indiana Supreme Court asking them to consider his client's competency due to his paranoid schizophrenia diagnosis in 1999. The court denied the attorneys' request on Dec. 5....

Corcoran died at 12:44 a.m. CST after being given a lethal dose of pentobarbital.... After the execution, Gov, Eric Holcomb said, "Joseph Corcoran’s case has been reviewed repeatedly over the last 25 years — including 7 times by the Indiana Supreme Court and 3 times by the U.S. Supreme Court, the most recent of which was tonight. His sentence has never been overturned and was carried out as ordered by the court.”

Alabama completes its third execution using nitrogen gas, its sixth of 2024

As detailed in this lengthy local story, "Alabama executed Carey Dale Grayson for the 1994 brutal slaying and mutilation of a hitchhiker in Jefferson County on Thursday evening, making it the state’s sixth execution in 2024."  Here are some details:

Earlier Thursday, the U.S. Supreme Court cleared the way for 50-year-old Grayson to be killed using the relatively new method of pumping nitrogen gas into a mask fitted over an inmate’s face and suffocating him to death.... Grayson used his last words to curse the warden in charge of the prison.

Grayson was convicted with three other men -- all teenagers at the time -- for the murder and mutilation of 37-year-old Vicki Lynn Deblieux. The woman had been hitchhiking when she was picked up by the group of teenagers. Her body was found days later at the base of a cliff.

Her daughter, Jodi Haley, was present at Holman prison on Thursday night.  She described her mother at a press conference following the execution. “She was unique. She was spontaneous, she was wild. She was funny and she was gorgeous to boot,” Haley said.  She said she didn’t know what it was like to have a mother while going through life events like graduation, marriage, and children -- opportunities that were stolen from her.

But Haley also focused on Grayson and her stance against the death penalty.  Grayson was abused “in every possible way,” including having cigarettes put out on his skin, facing physical and sexual abuse and being thrown out on the street as an adolescent, Haley said. “I have to wonder how all of this slips through the cracks of the justice system. Because society failed this man as a child and my family suffered because of it,” she said.

Haley wondered what kind of positive impact Grayson could have had on lives. The ‘eye for an eye’ justification for the death penalty “it’s not right,” Haley said. “Murdering inmates under the guise of justice needs to stop,” Haley said. “State sanctioned homicide needs never be listed as cause of death,” she said. “I don’t know who we think we are. To be in such a modern time, we regress when we implement this punishment. I hope and pray my mother’s death will invoke these changes and give her senseless death some purpose,” Haley said....

The prison warden read the death warrant and pointed the microphone to Grayson’s face to utter his last words, but then immediately backed off after Grayson said, “For you, you need to f*** off.” Grayson, at one point, also pointed up the middle finger on at least his left hand, which was visible to media witnesses. “He’s cussed out most of our employees tonight so we were not going to give him the opportunity to spew that profanity,” said Commissioner John Hamm on why the warden took away the microphone....

Grayson continued leaning his head forward following his remarks and said something in a loud manner towards what appeared the middle execution viewing room, where state officials usually sit, as a guard hung the microphone up and the warden went into a separate room to begin the execution.

The gas apparently started flowing at 6:12 p.m., followed by Grayson gasping and raising, shaking his head left to right. About 6:14 p.m., both of his legs on the gurney raised up. His movements slowed, but he had what appeared to be periodic gasps over the following six minutes when he stopped moving.  At a press conference following the execution, Hamm said the first movements Grayson was doing were “all show” and the later movements were consistent with nitrogen gas executions.

Alabama Gov. Kay Ivey issued a press release following the execution, listing his time of death as 6:33 p.m. She said in a press release, “Some thirty years ago, Vicki DeBlieux’s journey to her mother’s house and ultimately, her life, were horrifically cut short because of Carey Grayson and three other men. She sensed something was wrong, attempted to escape, but instead, was brutally tortured and murdered. Even after her death, Mr. Grayson’s crimes against Ms. DeBlieux were heinous, unimaginable, without an ounce of regard for human life and just unexplainably mean. An execution by nitrogen hypoxia bares no comparison to the death and dismemberment Ms. DeBlieux experienced. I pray for her loved ones that they may continue finding closure and healing.”...

Deblieux was kidnapped while hitchhiking from Chattanooga to see her mother in Louisiana. She accepted a ride from Grayson, Kenny Loggins, Trace Duncan, and Louis Mangione on the Trussville exit of Interstate 59 on Feb. 22, 1994. Deblieux’s nude and dismembered body was found four days later at the bottom of a cliff on Bald Rock Mountain in St. Clair County.

Court records show after picking up the woman, the teens took her to an abandoned area near Medical Center East in Birmingham, where they all drank. At some point, the teens attacked and killed Deblieux, drove her body to St. Clair County, then tossed her body and luggage off the cliff.

Given what now seems to be Alabama's repeated success with using nitrogen gas as an execution method, it will be interesting to see if other jurisdictions may make more robust efforts to adopt this method (or whether death row defendants might argue more robstly that this method must be provided as a more humane alternative to lethal injection).

Texas completes execution for murders committed 35 years ago

As reported in this AP article, a "Texas man convicted of fatally stabbing twin 16-year-old girls more than three decades ago was executed on Tuesday evening."  Here is more:

Garcia Glenn White was pronounced dead at 6:56 p.m. CDT following a chemical injection at the state penitentiary in Huntsville. He was condemned for the December 1989 killings of Annette and Bernette Edwards.  The bodies of the twin girls and their mother, Bonita Edwards, were found in their Houston apartment.

White, 61, was the sixth inmate put to death in the U.S. in the last 11 days.  His execution took place shortly after the U.S. Supreme Court, without comment, rejected three last-ditch appeals....

He said he took responsibility for the slayings, regretted his actions and was praying for prison officials, officers and “for my brothers and sisters behind these walls.”...

Testimony showed that White went to the girls’ Houston home to smoke crack with their mother, Bonita, who also was fatally stabbed.  When the girls came out of their room to see what happened, White attacked them. Evidence showed White broke down the locked door of the girls’ bedroom.  Authorities said he was later tied to the deaths of a grocery store owner and another woman.

Harris County District Attorney Kim Ogg, who witnessed White’s death, lamented that it took some 30 years to carry out the jury’s death verdict as multiple appeals in White’s case worked through the courts.  “The suffering of surviving (victims’) family members is just unspeakable,” she said. “At least it’s over.”

White’s lawyers had unsuccessfully appealed to the U.S. Supreme Court to stop the execution after lower courts previously rejected petitions for a stay.  The Texas Board of Pardons and Paroles on Friday denied White’s request to commute his death sentence to a lesser penalty or to grant him a 30-day reprieve....

The deaths of the twin girls and their mother went unsolved for about six years until White confessed to the killings after he was arrested in connection with the July 1995 death of grocery store owner Hai Van Pham, who was fatally beaten during a robbery at his business.  Police said White also confessed to fatally beating another woman, Greta Williams, in 1989.

Another day, another two executions completed in two states

As noted in this post, on Tuesday of this week, Missouri and Texas completed executions of condemned murderers.  Today, it was Alabama and Oklahoma carrying out executions.  Here are press accounts:

From AL.com, "Alabama inmate Alan Miller executed with nitrogen gas Thursday for 1999 shootings":

An Alabama Death Row inmate, convicted of killing three men in a workplace shooting, was executed Thursday evening. He is the second inmate in the country to be executed using nitrogen gas.

Alan Eugene Miller, 59, was executed at 6 p.m. at William C. Holman Correctional Facility in Atmore. The prison, located just north of the Florida border, is the only facility in the state equipped with an execution chamber and where most of the state’s death row inmates are housed.

From USA Today, "Emmanuel Littlejohn executed in Oklahoma despite clemency recommendation from state board":

Emmanuel Littlejohn was executed by the state of Oklahoma Thursday morning in the shooting death of a beloved convenience store owner, despite a recommendation from a clemency board that his life should be spared.

Littlejohn was convicted of the 1992 murder of Kenneth Meers in a robbery that turned fatal. Littlejohn had admitted to his role in the robbery but insisted until his death that an accomplice was the one to pull the trigger.

Littlejohn's execution was the fourth in the U.S. in less than a week and comes just hours before Alabama is set to use nitrogen gas to execute Alan Eugene Miller on Thursday evening.

Missouri and Texas both complete lethal injection executions

Two states completed executions last night.  Here are the basics from news accounts:

From CNN, "Missouri executes Marcellus Williams despite prosecutors and the victim’s family asking that he be spared":

Marcellus Williams, whose murder conviction was questioned by a prosecutor, died by lethal injection Tuesday evening in Missouri after the US Supreme Court denied a stay.  The 55-year-old was put to death around 6 p.m. CT at the state prison in Bonne Terre.

Williams’ attorneys had filed a flurry of appeal efforts based on what they described as new evidence – including alleged bias in jury selection and contamination of the murder weapon prior to trial. The victim’s family had asked the inmate be spared death.  The US Supreme Court’s action came a day after Missouri’s supreme court and governor refused to grant a stay of execution.

From AP, "Texas man who waived his right to appeal death sentence is executed for killing infant son":

A Texas man who had waived his right to appeal his death sentence received a lethal injection Tuesday evening for killing his 3-month-old son more than 16 years ago, one of five executions scheduled within a week’s time in the U.S.

Travis Mullis, 38, was pronounced dead at 7:01 p.m. CDT following the injection at the state penitentiary in Huntsville. He was condemned for stomping to death his son Alijah in January 2008.

I believe that the last time the US had two executions on the same day was just last year on November 16, 2023. And it woudl happen again tomorrow with executions scheduled in Alabama and Oklahoma.

South Carolina completes its first execution in 13 years

As reported in this AP piece, "South Carolina put inmate Freddie Owens to death Friday as the state restarted executions after an unintended 13-year pause because prison officials couldn’t get the drugs needed for lethal injections."  Here is more:

Owens was convicted of the 1997 killing of a Greenville convenience store clerk during a robbery.  While on trial, Owens killed a person incarcerated at a county jail. His confession to that attack was read to two different juries and a judge who all sentenced him to death....

Owens’ last-ditch appeals were repeatedly denied, including by a federal court Friday morning.  Owens also petitioned for a stay of execution from the U.S. Supreme Court.  South Carolina’s governor and corrections director swiftly filed a reply, stating the high court should reject Owens’ petition. The filing said nothing is exceptional about his case.  The high court denied the request shortly after the scheduled start time of the execution.

His last chance to avoid death was for Republican South Carolina Gov. Henry McMaster to commute his sentence to life in prison.  McMaster denied Owens’ request as well, stating that he had “carefully reviewed and thoughtfully considered” Owens’ application for clemency.

Owens may be the first of several people to die in the state’s death chamber at Broad River Correctional Institution. Five other people are out of appeals, and the South Carolina Supreme Court has cleared the way to hold an execution every five weeks.

South Carolina first tried to add the firing squad to restart executions after its supply of lethal injection drugs expired and no company was willing to publicly sell them more.  But the state had to pass a shield law keeping the drug supplier and much of the protocol for executions secret to be able to reopen the death chamber.

To carry out executions, the state switched from a three-drug method to a new protocol of using just the sedative pentobarbital.  The new process is similar to how the federal government kills people on death row, state prison officials said....

South Carolina has put 43 people to death since the death penalty was restarted in the U.S. in 1976. In the early 2000s, it was carrying out an average of three executions a year.  Only nine states have put more people to death.

Since the unintentional execution pause, South Carolina’s death row population has dwindled.  The state had 63 condemned people in early 2011.  It now has 31 after Owens’ death Friday.  About 20 people have been taken off death row and received different prison sentences after successful appeals.  Others have died of natural causes.

Five executions scheduled in five different states over the next week

Over the first eight months of 2024, the United States has averaged less than two executions per month.  And two executions per month has been, very roughly, the average pace of executions in the US for the past decade.  For context and comparison, over the decade from 2005 to 2014, the US averaged nearly four executions per month; over the decade from 1995 to 2004, the US average approach almost six executions per month. 

But starting with a scheduled execution in South Carolina tomorrow, there are five executions scheduled over the next week with Missouri and Texas both having executions scheduled for Tuesday, September 24, and Oklahoma and Alabama both having executions scheduled for Thursday, September 26.  Based on a (too quick) scan of the DPIC database, I believe it has been nearly 15 years since the US has completed five executions within a week. 

It remains to be seen if all of these executions will be completed as scheduled.  As Chris Geidner discusses in this new substack post, some of the condemned are raising innocence claims and others are pressing various litigation avenues seeking to disrupt state execution plans.  If all these scheduled executions are completed, the US would have carried a total of exactly 1600 executions in the "modern" death penalty era (which is now nearly 50 years along).

Should Alabama's next scheduled nitrogen gas execution be video recorded?

The question in the title of this post is prompted by this AP piece discussing litigation over the nitrogen gas execution scheduled in less than two weeks in Alabama.  Here are excerpts: 

The state of Alabama asked a judge Friday to deny defense lawyers’ request to film the next execution by nitrogen gas in an attempt to help courts evaluate whether the new method is humane.

The request to record the scheduled Sept. 26 execution of Alan Miller was filed by attorneys for another man facing the death penalty, Carey Dale Grayson. They are challenging the constitutionality of the method after Alabama carried out the nation’s first execution by nitrogen gas in January, when Kenneth Smith was put to death.

“Serious constitutional questions linger over Alabama’s nitrogen hypoxia protocol. To date, the only instance of a judicially sanctioned execution — that of Kenneth Eugene Smith — using nitrogen did not proceed in the manner defendants promised,” lawyers for inmate Carey Dale Grayson wrote. Grayson is scheduled to be executed in November with nitrogen gas.

Witnesses to Smith’s execution described him shaking on the gurney for several minutes as he was put to death by nitrogen gas. Alabama Attorney General Steve Marshall declared the execution was a “textbook” success. Attorneys for Grayson wrote that, “one way to assist in providing an accurate record of the next nitrogen execution is to require it be videotaped.”

The lethal injection of a Georgia man was recorded in 2011.  The Associated Press reported that video camera and a camera operator were in the execution chamber.  Judges had approved another inmate’s request to record the execution to provide evidence about the effects of pentobarbital.  A 1992 execution in California was recorded when attorneys challenged the use of the gas chamber as a method of execution.

The Alabama attorney general’s office on Friday asked U.S. District Judge R. Austin Huffaker, Jr. to deny the request. “There is no purpose to be served by the contemplated intrusion into the state’s operation of its criminal justice system and execution of a criminal sentence wholly unrelated to this case,” state attorneys wrote in the court filing.

South Carolina Supreme Court takes up pacing of state execution plans

As reported in this new AP piece, the "South Carolina Supreme Court won't allow another execution in the state until it determines a minimum amount of time between sending inmates to the death chamber." Here is more:

The state's next execution, scheduled for Sept. 20, is still on for inmate Freddie Eugene Owens.  It would be the first execution in South Carolina in over 13 years after the court cleared the way to reopen the death chamber last month.

But as it set Owens' execution date Friday, the court also agreed to take up a request from four other death row inmates who are out of appeals to require the state to wait at least three months between executions.  In its response, state prosecutors suggested setting the minimum at no longer than four weeks between executions.

Currently, the Supreme Court can set executions as close together as a week apart.  That accelerated schedule would rush lawyers who are trying to represent multiple inmates on death row, a lawyer for the inmates wrote in court papers.  Prison staff who have to take extensive steps to prepare to put an inmate to death and could cause botched executions, attorney Lindsey Vann said.

Neither argument is a good reason to wait for three months, state prosecutors responded in offering up to a four-week delay.  “The Department of Corrections staff stands ready to accomplish their duty as required by our law with professionalism and dignity,” Senior Deputy Attorney General Melody Brown wrote in a response drafted after speaking to prison officials....

South Carolina has held executions in rapid succession before.  Two half brothers were put to death in one night in December 1998.  Another execution followed on each of the next two Fridays that month, with two more in January 1999.

UPDATE: As reported in this press piece, the "South Carolina’s Supreme Court promised [on August 30] it would wait at least five weeks between putting inmates to death as the state restarts its death chamber with up to six executions looming."

Utah completes its first execution in 14 years

As reported in this USA Today article, "Utah executed a death row inmate for the 1998 murder of his then-girlfriend's mother on Thursday, the 12th execution in the nation this year and the state's first since a firing squad execution in 2010."  Here is more:

Taberon Dave Honie, 48, was executed by lethal injection and pronounced dead on Thursday, at 12:25 a.m. Mountain Time, according to the Utah Department of Corrections.  Honie's execution came nearly seven hours after Texas executed Arthur Lee Burton on Wednesday for the murder of Nancy Adleman, a 48-year-old mother of three who was out on a jog in Houston in 1997.

Honie was convicted for the murder of 49-year-old Claudia Benn, a substance abuse counselor for Utah's Paiute Tribe and a devoted grandmother of three. Benita Yracheta, Benn's daughter, told USA TODAY on Monday that she feels relief that she can put her mother's brutal death behind her, saying that justice is "finally happening" and at least Honie could prepare for the day. "My mom, she never knew her death date," she said. "She didn’t know she was gonna die that night." ....

There isn't "much similarity at all" between Honie's execution and Ronnie Lee Gardner's execution by firing squad in 2010, said Pat Reavy, a reporter with KSL.com who witnessed both executions, at the press conference. "I guess there's a peaceful way to put someone to death," said Reavy about Honie's execution "That's what this was."  Reavy described the firing squad execution as more traumatic. "The firing squad execution I thought was much more violent," said Reavy. "It shakes you, it's just so loud." While Honie's execution took longer, he adds that it really was "like watching a person fall asleep and not wake up again."...

Benn was babysitting her three granddaughters on July 9, 1998.  Her daughter, Carol Pikyavit, had been living with Benn along with her 2-year-old daughter, whom she shared with Honie, when Honie called.  He was drunk and angry, and at one point, threatened to kill everyone in the home and take their daughter if Pikyavit didn't make time to see him, court records say. Not taking the threat seriously, Pikyavit left the home and headed to work.

Honie headed to the house and began arguing with Benn.  Honie told police that Benn started the fight and was calling him names through a sliding glass door before he snapped, broke through the door and went inside. Benn had grabbed a butcher knife but was overpowered by Honie, who grabbed the knife and brought it to her throat, court records say. Honie says the two of them both tripped while the knife was at Benn’s throat and that she fell on the blade.

Police said Benn was found face down in the living room, with numerous “stabbing and cutting wounds” to her neck and genitals, according to court documents. Honie confessed to the murder, telling police that same night he had “stabbed and killed her with a knife,” USA TODAY reported.

All three grandchildren were found at the home with varying degrees of blood on their clothes and body.  There was also evidence that one of Benn’s granddaughters was sexually abused at some point, court documents say.  Honie was arrested, charged and convicted of aggravated murder.

South Carolina Supreme Court finds all three of state's execution methods to be constitutional

As reported in this local article, a "majority on the S.C. Supreme Court has ruled that allowing death row inmates the choice of the electric chair or firing squad to carry out their sentences does not constitute cruel and unusual punishment."  Here is more about the ruling:

The decision, published July 31, comes several years after the state legislature introduced the two methods as an alternative to lethal injection, which was discontinued after the state Department of Corrections was no longer able to procure the lethal drugs necessary to carry out those sentences.

The law prompted an immediate legal challenge, with opponents of the death penalty arguing that both alternative methods were exceedingly painful and unusual in a country where executions have overall been declining. Today, just five states — Idaho, Mississippi, Oklahoma, South Carolina and Utah — deploy firing squads for executions, while the electric chair is currently used in Alabama, Arkansas, Florida, Kentucky, South Carolina and Tennessee.

A Richland County court ruled in 2022 that both electrocution and the firing squad violated the South Carolina Constitution's provisions against cruel and unusual punishment.

Writing for the majority on July 31, Justice John Cannon Few wrote that the two methods could not be considered cruel and unusual because, rather than representing an effort to inflict pain, the execution methods represented the S.C. General Assembly's "sincere effort" to make the death penalty less inhumane while enabling the state to carry out its laws.

The full ruling in Owens v. Stirling, Opinion No. 28222 (S.C. July 31, 2024) (available here), which includes some partial dissents on certain execution methods, runs nearly 100 pages.  Because there seems to now be only a few (if any) current US Supreme Court Justices eager to police state execution methods, these kinds of state supreme court rulings are nearly certain to be the last legal word on these matters for the foreseeable future.

Recent active discussions regarding Ohio's dormant death penalty

I have long viewed Ohio as a fascinating death penalty state, though that view is surely influenced by the fact I teach and write about capital punishment here in the Buckeye State.  Especially for a state outside the deep south, Ohio has long had a active death system: Ohio juries have imposed a relatively large number of death sentences and Ohio was behind only a few states in the total number of executions for the first dozen of so years starting the 21st century.  

But lots of litigation over execution methods and a range of other factors have contrubuted to a significant reduction in recent years in the (a) the size of Ohio's death row, (b) the number of new death sentences, and (c) completed executions in Ohio.  Of particular note, there has not been an execution in Ohio since summer 2018, and it certainly seems that current Ohio Governor Mike DeWine is  disinclined to preside over any executions while he is in office (which will be through 2026).  But the dormant capital punishment reality has not precluded active capital punishment discussions, as highlights by these recent stories:

From DPIC, "Ohio Legislative Black Caucus Identifies Death Penalty as a Legislative Priority Due to Legacy of Racial Violence and Bias"

From Fox News, "Ohio sheriff fed up with crime stemming from border crisis calls for death penalty renewal"

From Ohio Capital Journal, "Backers believe nitrogen hypoxia can jumpstart Ohio’s stalled capital punishment system""

From Spectrum News, "Gov. DeWine delays 3 more executions"

From WCMH, "Move to abolish Ohio’s death penalty renewed"

From WKRC, "Ohio considers 2 new death penalty bills that would either end executions or restart them"

Noticing that nitrogen gas as an execution method is not (yet) proving so popular

This lengthy new CNN article, headlined "Execution by nitrogen hypoxia doesn’t seem headed for widespread adoption as bills fall short and nitrogen producers object," highlights that other states have not yet followed Alabama's path-breaking lead in a new execution method.  Here is how the article begins:

The day after Alabama carried out the first-known US execution using nitrogen gas, its attorney general sent a clear message to death penalty states that might want to follow suit: “Alabama has done it, and now so can you.”

Indeed, in the weeks immediately following the January execution of Kenneth Smith, it appeared a handful of states were listening, introducing bills that would adopt the method known as nitrogen hypoxia or a similar one.  Officials behind each framed the legislation as an alternative method that could help resume executions where they had long been stalled.

But months later — as the circumstances of Smith’s death continue to fuel debate about nitrogen hypoxia — it’s also increasingly unclear whether more states will, in earnest, follow Alabama in implementing the method, which involves replacing the air breathed by the condemned inmate with 100% nitrogen, depriving them of oxygen.  Oklahoma and Mississippi have also legalized nitrogen hypoxia, but Alabama, which plans to execute a second inmate with nitrogen gas this fall, is the sole state to have put someone to death using it.

Only one of the recently proposed state bills authorizing such a form of execution has been signed into law: Two were stuck before committees when their state legislatures adjourned this year, and a sponsor of the third acknowledged its future is uncertain.

Alabama executes by lethal injection double murderer 20 years after his crime

As reported in this AP piece, an "Alabama man received a lethal injection Thursday for the killing of an elderly couple in 2004, the first inmate put to death by the state since it became the first in the nation to execute an inmate using nitrogen gas months ago." Here is more:

Jamie Ray Mills, 50, was pronounced dead at 6:26 p.m. after a three-drug injection at the William C. Holman Correctional Faciilty in southwest Alabama, authorities said.  Lethal injection remains Alabama’s default method of execution unless an inmate requests nitrogen gas or the electric chair to carry out the death sentence.

Mills was convicted of capital murder at trial in the killings of Floyd Hill, 87, and his wife Vera, 72. Prosecutors said the victims were attacked with a hammer, machete and a tire tool at their home in a small community about 80 miles northwest of Birmingham.

Hours earlier, the U.S. Supreme Court declined without comment to block Thursday’s execution.  Attorneys for Mills, who maintained his innocence at his 2007 trial, had argued that newly obtained evidence showed the prosecution lied about having a plea agreement with Mills’ wife to spare her from seeking the death penalty against her if she testified against her husband. They also argued Alabama has a history of problematic executions.

Oklahoma completes execution for double murder committed 20+ years ago

As reported in this AP piece, Michael Dewayne Smith, who was "convicted of shooting and killing two people in Oklahoma City more than two decades ago, was executed Thursday morning." Here is a bit more:

After the first of three lethal drugs, midazolam, was administered, Smith, 41, appeared to shake briefly and attempt to lift his head from the gurney before relaxing. He then took several short, audible breaths that sounded like snores or gasps. Oklahoma DOC Director Steven Harpe said after the execution that Smith “appeared to have some form of sleep apnea.”

A masked doctor entered the execution chamber at 10:14 a.m. and shook Smith several times before declaring him unconscious. Smith appeared to stop breathing about a minute later. The doctor reentered the execution chamber at 10:19 a.m. and checked for a pulse before Harpe announced the time of death.

Smith was sentenced to die in the separate shooting deaths of Janet Moore, 41, and Sharath Pulluru, 22, in February 2002.

He is the first person executed in Oklahoma this year and the 12th put to death since the state resumed executions in 2021 following a nearly seven-year hiatus resulting from problems with executions in 2014 and 2015.

Idaho officials botch execution of serial killer by failing in repeated attempts to establish an IV for lethal injection

As reported in this AP article, "Idaho on Wednesday delayed the execution of serial killer Thomas Eugene Creech, one of the longest-serving death row inmates in the U.S., after a failed attempt at lethal injection." Here is more:

Creech, 73, was imprisoned in 1974 and has been convicted of five murders in three states and suspected of several more.  He was already serving life in prison when he beat a fellow inmate, 22-year-old David Dale Jensen, to death in 1981 — the crime for which Creech was to be executed more than four decades later.

Creech was wheeled into the room at the Idaho Maximum Security Institution on a gurney at 10 a.m.  The warden announced he was halting the execution at 10:58 a.m.  Six Idaho officials, including Attorney General Raul Labrador, and four news media representatives, including an Associated Press reporter, were on hand to witness the attempt.

Idaho’s prison director said the medical team could not establish an IV line to administer the fatal drug.  A team of three medical team members tried repeatedly to establish an IV, attempting sites in both of Creech’s arms and legs.  The IV sites appeared to be in the crook of his arms, his hands, near his ankles and in his feet.  At one point, the medical cart holding supplies was moved in front of the media witness viewing window, partially obscuring the view of the medical team’s efforts.  A team member also had to leave the execution chamber to gather more supplies....

After the execution was halted, the warden approached Creech and whispered to him for several minutes, giving his arm a squeeze.  Creech’s attorneys immediately filed a new motion for a stay in U.S. District Court, saying “Given the badly botched execution attempt this morning, which proves IDOC’s inability to carry out a humane and constitutional execution, undersigned counsel preemptively seek an emergency stay of execution to prevent any further attempts today.”

The Idaho Department of Corrections said its death warrant for Creech would expire, and that it was considering next steps.

Creech’s attorneys filed a flurry of late appeals hoping to forestall his execution.  They included claims that his clemency hearing was unfair, that it was unconstitutional to kill him because he was sentenced by a judge rather than a jury and that he received ineffective assistance of counsel. But the courts found no grounds for leniency. Creech’s last chance — a petition to the U.S. Supreme Court — was denied a few hours before the scheduled execution Wednesday....

Creech’s execution was to be Idaho’s first in 12 years. Last year, Idaho lawmakers passed a law authorizing execution by firing squad when lethal injection is not available.  Prison officials have not yet written a standard operating policy for the use of firing squad, nor have they constructed a facility where a firing squad execution could occur.  Both of those things would have to happen before the state could attempt to use the new law, which would likely trigger several legal challenges in court.

New federal lawsuit from Alabama death row defendant claims nitrogen gas execution method unconstitutional

As reported in this AP piece, an "Alabama death row inmate filed a lawsuit Thursday that challenges the constitutionality of nitrogen gas executions, arguing that the first person in the nation put to death by that method shook violently for several minutes in 'a human experiment that officials botched miserably'."  Here is more:

The lawsuit filed in federal court in Alabama alleges the January execution of Kenneth Eugene Smith by nitrogen gas was torturous and “cannot be allowed to be repeated.” The lawsuit says descriptions from witnesses that Smith shook and convulsed contradicted the state’s promises to federal judges that nitrogen would provide a quick and humane death.

“The results of the first human experiment are now in and they demonstrate that nitrogen gas asphyxiation is neither quick nor painless, but agonizing and painful,” attorney Bernard E. Harcourt wrote in the lawsuit. The lawsuit was filed on behalf of death row inmate David Phillip Wilson, who was sentenced to death after he was convicted of killing a man during a 2004 burglary. The lawsuit seeks a declaratory judgment that the current nitrogen gas asphyxiation protocol violates the inmate’s constitutional right to protection from cruel and unusual punishment.

Alabama last month became the first state to use nitrogen gas to put an inmate to death. Nitrogen gas is authorized in three states — Alabama, Oklahoma and Mississippi — but no state had previously attempted to use it.... The U.S. Supreme Court allowed Smith’s execution to proceed last month. The lawsuit contends that media and witness accounts of the execution contradict the state’s prediction to the courts that the nitrogen gas would render Smith unconscious “within seconds.”

Smith shook in thrashing spasms and seizure-like movements for several minutes at the start of the execution. The force of his movements caused the gurney to visibly move at least once. Reporters from The Associated Press, al.com, the Montgomery Advertiser, the Alabama Reflector and WHNT attended the execution as media witnesses. “In stark contrast to the Attorney General’s representations, the five media witnesses chosen by the Alabama Department of Corrections and present at Mr. Smith’s execution recounted a prolonged period of consciousness marked by shaking, struggling, and writhing by Mr. Smith for several minutes after the nitrogen gas started flowing,” the lawsuit stated....

Alabama Attorney General Steve Marshall has maintained that the execution was “textbook” and said the state will seek to carry out more death sentences using nitrogen gas. “As of last night, nitrogen hypoxia as a means of execution is no longer an untested method. It is a proven one,” Marshall said the morning after Smith’s execution, extending an offer of help for states considering adopting the method.

Alabama Corrections Commissioner John Q. Hamm said he thought Smith might have deliberately held his breath, but also said the state expected involuntary movements and the type of breathing that occurs with lack of oxygen. “That was all expected and was in the side effects that we’ve seen or researched on nitrogen hypoxia,” Hamm said.

Rounding up some continuing discussions a week after Alabama's nitrogen gas execution

Unsuprisingly, conversations and debates over Alabama's pioneering next execution method are continuing a week after that state used nitrogen gas to carry out a death sentence for a murder committed over 35 years ago.  Here is an abridged round-up of some of the recent pieces that have caught my eye:

From the AP, "Oklahoma governor says he’s not interested in changing from lethal injection to nitrogen executions"

From the Louisiana Illuminator, "Landry wants Louisiana to resume executions, fulfill ‘contractual obligations’ with victims’ families"

From the New York Times, "A Select Few Witnessed Alabama’s Nitrogen Execution. This Is What They Saw."

From Slate, "'It Was the Most Violent Thing I’ve Ever Seen': Inside the chamber for Alabama’s experimental new execution technique."

From the Statehouse News Bureau, "Opponents of nitrogen executions bill cite Ohio's ban on gas for pet euthanasia"

Ohio becomes first state to have bill introduced for nitrogen gas executions after Alabama's success

As reported in this AP article, "Ohio’s Republican attorney general put his weight behind a legislative effort Tuesday to bring nitrogen gas executions to the state, joining what could be a national movement in pro-death penalty states to expand capital punishment on the heels of Alabama’s first use of the method last week." Here is more:

Attorney General Dave Yost said adding nitrogen gas as an execution alternative in Ohio could end an unofficial death penalty moratorium that Republican Gov. Mike DeWine declared in 2020.  The governor said at the time that lethal injection was “no longer an option” for Ohio because of difficulties finding drugs and repercussions the state could face from drugmakers if one of their pharmaceuticals was used in an execution.  The state’s last execution was in 2018.  “Saying that the law of Ohio should be thwarted because pharmaceutical companies don’t want to sell the chemicals is an abdication of the sovereignty of the state of Ohio, which still has this law on the books,” Yost said.

He was joined at a Tuesday news conference by Republican state Reps. Brian Stewart and Phil Plummer, who introduced a bill Tuesday to add the new method. Alabama used it for the first time Thursday, when convicted murderer Kenneth Eugene Smith, 58, was put to death with nitrogen gas administered through a face mask to deprive him of oxygen.... The Ohio bill would give condemned inmates a choice between lethal injection and nitrogen gas but would require their executions to go forward with nitrogen gas if lethal injection drugs are not available, Stewart said....  

Yost said nitrogen gas is abundant and would be easy for the state to procure from the private sector.  At least one private company, industrial gas distributor Airgas, has announced its opposition to supplying nitrogen for executions. Yost, a former prosecutor and potential 2026 gubernatorial contender, said he is not concerned that the method has been used only once and that Smith appeared to struggle for several minutes as he died....

Plummer, a former county sheriff, said lengthy delays are defeating part of the purpose of Ohio’s death penalty law: “We need some closure for the victims in cases like these ones.”  Stewart criticized DeWine for delaying so many executions over pharmaceutical companies’ unwillingness to see their products used to put people to death.  He noted that Florida and the federal government have continued administering lethal injections while Ohio’s unofficial pause has been in place.  Yost noted that the federal government had a stockpile of drugs, putting it in a potentially different position than Ohio.

Ohio’s last execution was on July 18, 2018, when Robert Van Hook was put to death by lethal injection for killing a man he met in a Cincinnati bar in 1985.  His was the 56th execution since 1999.  Amid the unofficial moratorium, bipartisan groups of lawmakers have repeatedly pushed bills to eliminate the state’s death penalty, including one this session....

DeWine’s spokesman, Dan Tierney, said the governor typically does not comment on pending legislation.  Tierney noted that no death penalty-related legislation, whether for or against, has moved in recent years. 

Ohio has 118 men and one woman on death row, according to the most recent state report.

A few recent related posts:

• Will other states move to nitrogen after Alabama's pioneering success with new execution method? 
• "Will other states replicate Alabama’s nitrogen execution?" 

"Will other states replicate Alabama’s nitrogen execution?"

The question in the title of this post is the headline of this lengthy AP article.  I think an important related question in whether a new execution method might enable more states to increase the pace of executions (which have averaged less than two per month nationwide over the last decade after averaging double or triple that rate in prior decades).  Here are some excerpts from the AP piece:

Alabama’s first-ever use of nitrogen gas for an execution could gain traction among other states and change how the death penalty is carried out in the United States, much like lethal injection did more than 40 years ago, according to experts on capital punishment.

Alabama Attorney General Steve Marshall said Friday that the execution of Kenneth Eugene Smith, a 58-year-old convicted of a 1988 murder-for-hire, went off as planned and his office is ready to help other states if they want to begin nitrogen executions. “Alabama has done it, and now so can you,” Marshall said at a news conference.

At least some prison officials in other states say they hope to closely analyze how the process worked in Alabama and whether to replicate it in their states. Oklahoma and Mississippi already have laws authorizing the use of nitrogen gas for executions, and some other states, including Nebraska, have introduced measures this year to add it as an option. “Our intentions are if this works and it’s humane and we can, absolutely we’ll want to use it,” said Steven Harpe, director of Oklahoma’s prison system....

Oklahoma was the first state to contemplate the use of nitrogen gas nearly a decade ago after the 2014 botched execution of Clayton Lockett who clenched his teeth, moaned and writhed on the gurney before a doctor noticed a problem with the intravenous line and the execution was called off before Lockett died, 43 minutes after the procedure began. A later investigation revealed the IV had become dislodged and the lethal chemicals were pumped into the tissue surrounding the injection site instead of into his bloodstream.

Numerous other states, including Alabama, have had problems for years administering lethal injection or obtaining the deadly drugs, particularly as manufacturers, many of them based in Europe, have objected to their drugs being used to kill people and prohibited their sale to corrections departments or stopped manufacturing them altogether.  Even as some death penalty states remain committed to pursuing the executions, capital punishment is undergoing a yearslong decline of use and support, and more Americans now believe the death penalty is being administered unfairly, according to a recent annual report.

A few recent related posts:

• Alabama officially sets execution date for historic effort to use nitrogen gas for completing death sentence
• Federal district judge concludes condemned has not shown Alabama's nitrogen gas execution protocol is constitutionally infirm 
• Is Alabama going to be able to go forward with an historic execution this week? 
• Federal courts so far refusing to block Alabama's plan to be first-of-its-kind, second execution
• Will other states move to nitrogen after Alabama's pioneering success with new execution method? 

Will other states move to nitrogen after Alabama's pioneering success with new execution method?

The question in the title of this post is was my first question in the wake of last night's newa that Alabama carried out an historic first execution using nitrogen gas.  This New York Times article provides this account of the execution and what it could mean:

Alabama carried out the first American execution using nitrogen gas on Thursday evening, killing a convicted murderer whose jury had voted to spare his life and opening a new frontier in how states execute death row prisoners.

The execution of the condemned prisoner, Kenneth Smith, 58, began at 7:53 p.m. Central time, and he was pronounced dead at 8:25 p.m. in an execution chamber in Atmore, Ala., according to John Q. Hamm, the state prison system’s commissioner.  The U.S. Supreme Court allowed the execution to move forward over the objections of its three liberal justices and concerns from death penalty opponents that the untested method could cause Mr. Smith to suffer.

Mr. Smith, who was strapped to a gurney with a mask placed on his head, appeared conscious for several minutes after the nitrogen gas started flowing into the mask, depriving him of oxygen, according to a pool report from five Alabama journalists who witnessed the execution.  State lawyers had previously claimed in court filings that an execution by nitrogen would ensure “unconsciousness in seconds.”  He then “shook and writhed” for at least two minutes before beginning to breathe heavily for several minutes.  Eventually, the journalists said, his breathing slowed until it was no longer apparent.

Mr. Hamm said it looked like Mr. Smith had tried to hold his breath as long as he could, and he downplayed Mr. Smith’s body movements, saying “nothing was out of the ordinary from what we were expecting.”...

Lee Hedgepeth, a reporter in Alabama who witnessed the execution, said Mr. Smith’s head moved back and forth violently in the minutes after the execution began. “This was the fifth execution that I’ve witnessed in Alabama, and I have never seen such a violent reaction to an execution,” Mr. Hedgepeth said.

Mr. Smith was one of three men convicted in the 1988 murder of Elizabeth Sennett, whose husband, a pastor, had recruited them to kill her.

It was the second time Alabama had tried to kill Mr. Smith, after a failed lethal injection in November 2022 in which executioners could not find a suitable vein before his death warrant expired.  Mr. Smith’s lawyers and the state’s attorney general, Steve Marshall, said Thursday’s execution was the first that had been carried out by nitrogen anywhere in the world.

Other states have looked to Alabama’s experience as they face mounting problems obtaining lethal injection drugs because of pressure from medical groups, activists and lawyers.  Mississippi and Oklahoma have authorized their prisons to carry out executions by nitrogen hypoxia, as the method is known, if they cannot use lethal injection, though they have never tried to do so. “Our proven method offers a blueprint for other states and a warning to those who would contemplate shedding innocent blood,” Mr. Marshall said, suggesting that the availability of an “efficient” execution method could act as a deterrent to criminals.

The Supreme Court’s order allowing the execution to go forward did not give an explanation, as is often the case when the justices decide on emergency applications.  The court’s three liberal members disagreed with the majority’s decision.

In a strongly worded dissent, Justice Sonia Sotomayor voiced concerns about Alabama’s new method. “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before,” she wrote. “The world is watching.”

Justice Elena Kagan, a separate dissent joined by Justice Ketanji Brown Jackson, wrote that she would pause the execution to give the court time to examine the “exceptional circumstances” surrounding Alabama’s new method of execution and Mr. Smith’s challenges.

The dissents from Justices Sotomayor and Kagan are available at this link.   In addition to "the world" watching, states have surely been watching this case closely.  That lower courts, and ultimately the Supreme Court, refused to interfere with this novel execution method likely will lead some some state legislators and prison officials to consider more seriously about nitrogen gas as a means of carrying out a death sentence.

At the same time, defendants facing execution by means of lethal injection might just prod states to adopt this new execution method.  In some states, defendants have contested lethal injection execution protocols by arguing that nitrogen gas would provide a more humane means to execute.  After this Alabama execution, such arguments may now be somewhat more forceful and may make some states even more likely to adopt nitrogen gas execution protocols.

Federal courts so far refusing to block Alabama's plan to be first-of-its-kind, second execution

As reported in this new New York Times piece, the "U.S. Supreme Court and a federal appeals court each declined on Wednesday to intervene to stop Alabama from conducting the nation’s first-ever execution by nitrogen gas, putting the state on track to use the novel method to kill a death row prisoner."  Here is more on today's rulings:

Alabama plans to use nitrogen gas to kill Kenneth Smith, who was convicted of a 1988 murder, after the state botched its previous attempt to execute him by lethal injection in November 2022.  Barring any additional legal interventions, prison officials plan to bring him to the execution chamber in Atmore, Ala., on Thursday evening, place a mask on his face and pump nitrogen into it, depriving him of oxygen until he dies.

The Supreme Court declined to intervene in Mr. Smith’s appeal of a state court case, in which his lawyers had argued that the second execution attempt would violate his Eighth Amendment right to be free from cruel and unusual punishments.  The court’s order did not include an explanation or note any dissents.

Hours later, in response to a separate challenge by Mr. Smith’s lawyers, a federal appeals court also declined to halt the execution over the dissent of one of the three judges who had heard the case.  Mr. Smith’s lawyers said they would also appeal that case to the Supreme Court, potentially giving the justices another chance to intervene, though they have been reluctant to do so in last-minute death penalty appeals in recent years.

Nitrogen gas has been used in assisted suicide in Europe and elsewhere, and the state’s lawyers contend that the method — known as nitrogen hypoxia — is painless and will quickly cause Mr. Smith to lose consciousness before he dies.

But Mr. Smith and his lawyers have said they fear the state’s newly created protocol is not sufficient to prevent problems that could cause Mr. Smith severe suffering.  The lawyers said in court papers that if the mask were a poor fit, it could allow oxygen in and prolong Mr. Smith’s suffering, or if he becomes nauseous, he could be “left to choke on his own vomit.”

The execution is scheduled to take place around 6 p.m. Central time at the William C. Holman Correctional Facility, though it could be carried out any time until 6 a.m. the next morning.

A few prior related posts:

• Alabama officially sets execution date for historic effort to use nitrogen gas for completing death sentence
• Federal district judge concludes condemned has not shown Alabama's nitrogen gas execution protocol is constitutionally infirm 
• Is Alabama going to be able to go forward with an historic execution this week? 

Is Alabama going to be able to go forward with an historic execution this week?

Alabama has an execution scheduled for January 25 that would be historic in two ways: (1) it would be the first execution using nitrogen gas, and (2) it would be the first modern execution of a conemned prisoner whose execution failed in a previous attempt.  Though Kenneth Eugene Smith is continuing to litigate in a effort to preclude his unique execution, I am (not-too-confidently) expecting his execution will go forward.  Here is an abridged round-up of press pieces about this scheduled execution:

From the AP, "Alabama plans to carry out first nitrogen gas execution. How will it work and what are the risks?"

From CBS News, "Alabama readies never-before-used execution method that some veterinarians won't even use for pets"

From Courthouse News Service, "Federal panel hears appeal of pending nitrogen hypoxia execution"

From Fox News, "Minister attending nitrogen gas execution of Alabama prisoner asks state for extra safety precautions"

From The Marshall Project, "Vomiting, Seizures, Stroke: What Could Happen in the First Nitrogen Execution in the U.S."

From Popular Mechanics, "This Man Survived One Execution. Now, Alabama Will Try to Kill Him Again—With Nitrogen Gas."

Federal district judge concludes condemned has not shown Alabama's nitrogen gas execution protocol is constitutionally infirm

As reported in this Reuters article, a "federal judge ruled on Wednesday that Alabama can proceed later this month with the first execution by nitrogen gas asphyxiation, saying that the condemned prisoner was unlikely to show the new method amounts to cruel or unusual punishment." Here is more:

Kenneth Smith, convicted for a murder-for-hire committed in 1988, is scheduled to be executed in Alabama on Jan. 25 using the method, in which execution officials will bind a mask to his face connected to a cylinder of nitrogen intended to deprive him of oxygen....

Judge R. Austin Huffaker of the U.S. District Court in Montgomery, Alabama, ruled against Smith, who sought an injunction halting the execution to allow his litigation to proceed. "Smith is not guaranteed a painless death," Huffaker wrote in his opinion, citing a U.S. Supreme Court precedent. He wrote that Smith "has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or superadded pain."

Smith, 58, is one of two people alive in the U.S. to have survived a judicial execution attempt: Alabama botched his previously scheduled execution by lethal injection in November 2022 when multiple attempts to insert an intravenous line failed. Robert Grass, a lawyer representing Smith, said he planned to appeal the ruling.

The full 48-page opinion is available at this link, and here is part of a key final section of the court's discussion:

So, it is Smith’s burden to show a substantial likelihood that he will succeed on his Eighth Amendment claim before the court will enjoin his execution to allow him to litigate his challenge, and for good reason.  The status quo here is that Smith will be executed by nitrogen hypoxia on January 25, 2024, using the ADOC’s current Protocol.  Courts presume, based upon the history and development of capital punishment in this country and the legislative process, that the Defendants do not “seek[] to superadd terror, pain, or disgrace to their executions” unless and until a condemned person can make the requisite showing under Baze and Glossip.  Bucklew, 139 S. Ct. at 1124–25 (citing Baze and Glossip).

Considering all the evidence presented and the parties’ arguments, Smith has not met that burden.  His evidence and allegations amount to speculation, at best “scientific controvers[y,]” well short “of showing that the method creates an unacceptable risk of pain.” Glossip, 576 U.S. at 882, 884.  As in Glossip, Smith’s own experts effectively conceded that they lacked evidence to prove Smith’s case beyond dispute. See id. at 884.  Proof of some theoretical risk does not clear Smith’s high hurdle: “[s]imply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Baze, 553 U.S. at 50.  Smith has argued and provided some evidence that the Protocol could theoretically result in some risk of pain if many other events occur, like vomiting or the dislodging of the mask during the execution procedure but — far from providing a feasible, readily implemented alternative nitrogen hypoxia protocol with his list of proposed amendments to the Protocol or his cursory allegations and evidence about the firing squad — he has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or superadded pain when compared to either of his alleged alternatives, nor that either of his alternative methods would in fact significantly reduce that risk if used instead.

Smith is not guaranteed a painless death.  Bucklew, 139 S. Ct. at 1124.  On this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts both cruel and unusual punishment rendering it constitutionally infirm under the prevailing legal framework.  Having failed to show a substantial likelihood of success on the merits, Smith is not entitled to injunctive relief on his Eighth Amendment claim.

Though Smith is surely going to appeal to the Eleventh Circuit and SCOTUS, I doubt he will get a different outcome in the weeks ahead.

"Six U.S. Execution Methods and the Disastrous Quest for Humaneness"

The title of this post is the title of this book chapter authored by Deborah Denno now available via SSRN. Here is its abstract:

This chapter examines the history and current status of the United States' six execution methods: hanging, firing squad, electrocution, lethal gas, lethal injection, and nitrogen hypoxia.  While lethal injection remains the most common technique, inmates have continuously challenged injection's experimental and scientifically dubious procedures on the grounds they are inhumane and unconstitutional.  Indeed, this country's ongoing transition from one technique to another — then back again — abounds with legislative, judicial, and correctional evidence detailing why each method failed so appreciably to become more civilized than the method superseded.  This chapter concludes that every execution state's desire to ensure the death penalty's survival at any cost propels each execution method's celebrated introduction and disastrous perpetuation.

Alabama documents flags risks to others in plans to pioneer execution with nitrogen gas

NPR has this new story on Alabama's plans to become the first state execute an individual using nitrogen gas under the headline "Alabama's upcoming gas execution could harm witnesses and violate religious liberty."  Here are excerpts from a lengthy piece:

The state of Alabama plans to execute a prisoner in January using nitrogen hypoxia, a process so novel and untested that state officials required the man's spiritual adviser to sign a waiver that said he could be exposed to the gas.  The acknowledgment form, exclusively obtained by NPR, also reveals that the spiritual adviser, Rev. Dr. Jeff Hood, is required to stay at least three feet away from the prisoner, which may violate both their religious liberties.

If Alabama proceeds with the execution, it will be the first time any U.S. state uses nitrogen gas to put a prisoner to death, but the second time Alabama attempts to execute Kenneth Smith.  Alabama's first attempt in 2022 to execute him failed. Before the execution was ultimately called off last year, Smith spent four hours strapped to a gurney as workers tried to insert needles into his veins to inject him with drugs.  Smith's lawyers requested the state use nitrogen gas instead of lethal injection if they attempted another execution.

Hood had an early warning that this execution might be dangerous. "When I first got in touch with Kenny," he said, "one of the first things that he asked me was, 'are you prepared to die to be my spiritual adviser'?"

The Department of Corrections asked Hood to sign a legal document confirming that the new method could put him at risk. The document declared that it was possible, although "highly unlikely," that the hose supplying gas to Smith's mask could detach and "an area of free-flowing nitrogen gas could result, creating a small area of risk (approximately two (2) feet) from the outflow."  It was also possible that nitrogen gas could displace oxygen in the air above Smith's face and head, according to the document, but there would be gas sensors in the room as a safety precaution.  The Department of Corrections asked Hood to agree to remain at least three feet away "from the mask or any outflow of breathing gases discharging from the system."

Critics say the form demonstrates that Alabama has not adequately prepared for the execution and that nitrogen gas may pose serious threats to workers nearby.  "They could start to hyperventilate because their body would detect that they're in a low oxygen environment," said Dr. Joel Zivot, an anesthesiologist and associate professor at Emory University School of Medicine.  "And that severe hyperventilation can lead to a stroke."...

At the time of publication, the agency did not respond to a request for comment about their assessment of the risk to others in the room. NPR requested all other forms the Department of Corrections may have asked workers to sign, but the agency declined to share the documents. A representative said that disclosure would be "detrimental to public interest."...

This year, Hood has been present at four executions in Texas, Oklahoma, and Alabama. He's never been required to acknowledge a risk to his safety before. "There is no doubt in my mind that Alabama is the most ill-prepared, unprofessional execution squad that exists of those three," Hood said.

Despite his reservations, Hood agreed to be Smith's adviser and signed the form on Nov. 15. "I just cling to a real knowledge that, 'greater love hath no one than this, that one would give their life for their friend,'" said Hood, quoting scripture.

Reviewing the uncertain state of the death penalty in the Buckeye State

Writing in the Columbus Monthly, Andrew Welsh-Huggins has this terrific overview of the curious state of capital punisnment in Ohio. The full headline highlights the lengthy piece's themes: "Justice For None: What the Future Holds for Ohio’s Death Penalty: After a 5-year unofficial moratorium, the future of capital punishment in the state is unclear, frustrating both supporters and opponents." Here are excerpts from a piece worth reading in full:

The reasons behind the current de facto moratorium are multifaceted but begin with this: Republican Gov. Mike DeWine has said repeatedly that Ohio can’t obtain the three drugs used in its current execution protocol — midazolam, a sedative; pancuronium bromide or a related drug, a paralyzing agent; and potassium chloride, which stops the heart. Even if the state could locate those drugs, DeWine argues, his administration doesn’t want to risk pharmaceutical companies shutting off access to other drugs needed in state institutions, from state-funded medical facilities to psychiatric hospitals to prisons dispensing regular medication to inmates.

Since taking office in January 2019, DeWine has issued more than 40 reprieves affecting 27 death row inmates, including three reprieves as recently as mid-October.... DeWine’s position is of small comfort to death row inmates and their attorneys, since several states — including Missouri, Oklahoma and Texas — continue to carry out executions with lethal drugs with no apparent backlash from pharmaceutical companies. Asked about this discrepancy, DeWine press secretary Dan Tierney stuck to the party line: The concern remains that any drug, obtained directly or through third-party means, could jeopardize the state of Ohio’s access to pharmaceuticals.

As far as capital punishment itself, Tierney says the governor’s position hasn’t changed since December 2020, when at the end of his second year in office he told the Associated Press that while he still supports the death penalty as Ohio law, he has come to question its value since his days as a state senator when he helped write the state’s current law—enacted in 1981—because of the long delays between crime and punishment....

Bipartisan bills to abolish the death penalty have come and gone repeatedly in recent Ohio legislative sessions, with most never advancing beyond a single hearing.  But this fall, two bills have been introduced both in the House and the Senate, and the bills’ supporters think they have more momentum than in the past.  They note a significant selling point: These versions aren’t retroactive — should the legislation be approved and become law, the death penalty would still be in place for inmates currently sentenced to death....

Ohio’s unofficial moratorium also reflects a broader trend: On the books or not, death sentences are rarer and rarer.  Nationally, the number of executions carried out dropped by 82 percent between 1999 and 2022, according to the Washington, D.C.- based Death Penalty Information Center, while death sentences declined 92 percent during the same time period. Ohio had no death sentences last year or in 2021, and just one in 2020.  Meanwhile, DeWine signed a bill into law in early 2021 that prohibits the execution of individuals suffering from such serious mental illnesses as schizophrenia, schizoaffective disorder, bipolar disorder or delusional disorders at the time of their crimes. That law alone has removed four inmates from death row....

But adhering to the status quo isn’t good enough for Ohio’s top cop, Attorney General Dave Yost, who in his office’s most recent annual report on capital punishment, said the state was laboring under a “broken capital-punishment system.”  Yost, a Republican and a possible candidate for governor in 2026, used financial estimates of the death penalty from other states to conclude that the extra cost of imposing the death penalty on the 128 inmates on Death Row as of the end of 2022 might range between $128 million to $384 million.  “That’s a stunning amount of money to spend on a program that doesn’t achieve its purpose,” Yost wrote.

He added, “This system satisfies nobody.  Those who oppose the death penalty want it abolished altogether, not ticking away like a time bomb that might or might not explode. Those who support the death penalty want it to be fair, timely and effective.  Neither side is getting what it wants while the state goes on pointlessly burning through enormous taxpayer resources.”

Alabama and Texas both complete executions

As reported in these two AP article, two death sentences were carried out this evening:

"Alabama inmate executed for the shooting death of man in 1993 robbery":

An Alabama inmate convicted of killing a man during a 1993 robbery when he was a teenager was executed Thursday by lethal injection. Casey McWhorter, 49, was pronounced dead at 6:56 p.m. at a southwest Alabama prison, authorities said. McWhorter was convicted of capital murder and sentenced to death for his role in the robbery and shooting death of Edward Lee Williams, 34, on Feb. 18, 1993.

Prosecutors said McWhorter, who was three months past his 18th birthday at the time of the killing, conspired with two younger teenagers, including Williams’ 15-year-old son, to steal money and other items from Williams’ home and then kill him. The jury that convicted McWhorter recommended a death sentence by a vote of 10-2, which a judge, who had the final decision, imposed, according to court records. The younger teens — Edward Lee Williams Jr. and Daniel Miner, who was 16 — were sentenced to life in prison, according to court records.

"Texas man executed for 2001 killing of 5-year-old girl abducted from a store":

A Texas man convicted of strangling a 5-year-old girl who was taken from a Walmart store nearly 22 years ago and burning her body was executed Thursday evening.

David Renteria, 53, was pronounced dead at 7:11 p.m. CST following an injection at the state penitentiary in Huntsville for the killing of Alexandra Flores. Renteria prayed, sang and asked for forgiveness before his execution.

Coincidentally, a year ago today, November 16, 2022, was the last time there were two executions completed in two states on the same day in the US.  It was Arizona and Texas last year.

Texas completes execution for murder committed 33+ years ago after two death sentencings

As reported in this Texas Tribune piece, "Texas executed Brent Brewer, who spent three decades on death row on Thursday evening for the 1990 murder of Robert Laminack. It was the seventh execution of 2023."  Here is more about this execution:

In late appeals, Brewer's lawyers argued that his death should be delayed to consider the issue of unreliable testimony, or what his lawyers called “junk science,” but late Thursday afternoon the U.S. Supreme Court denied that request. Earlier this week, Texas’ highest criminal appeals court declined similar motions to stay Brewer’s execution.

The Texas Board of Pardons and Paroles unanimously rejected Brewer clemency appeal on Tuesday. Brewer’s legal team requested a lesser penalty for him on the grounds that one of the state’s expert witnesses used unreliable methodologies to testify and that a juror says they mistakenly sentenced Brewer to death.

At 6:23 p.m., Brewer was injected with a lethal dose of pentobarbital. He died 15 minutes later. “I would like to tell the family of the victim that I could never figure out the words to fix what I have broken. I just want you to know that this 53-year-old is not the same reckless 19-year-old kid from 1990. I hope you find peace,” Brewer said in a final statement.

Brent Brewer was convicted of killing Laminack, who owned a business in Amarillo, according to court documents. Brewer asked Laminack for a ride to a Salvation Army with his girlfriend Kristie Nystrom. While en route, Brewer stabbed the 66-year-old Laminack and stole $140 in cash.

Brewer was sentenced to death in 1991 for the murder, but in 2007 the U.S. Supreme Court found that his jury was not given sufficient opportunity for the jury to consider a less severe punishment. Two years later, another jury also sentenced Brewer to death.

Michele Douglas was one of the 2009 jurors. After listening to the evidence, Douglas believed that Brewer didn’t intend to kill Laminack, “things simply got out of hand, with a tragic outcome,” she wrote in an Houston Chronicle opinion piece last week, requesting clemency for Brewer. During the trial, Douglas did not want to vote in favor of capital punishment for Laminack’s murder, which she did not think was premeditated. Douglas said she misunderstood the jury instructions. “Believing — incorrectly — that my vote was meaningless, I acquiesced in the majority’s death penalty verdict. I cried when it was read in court. I was haunted afterwards,” Douglas wrote last week.

A death sentence requires a unanimous vote from the jury in Texas. Over the years, jurors in different capital cases across the state have said the instructions are not clear and they would have voted for life sentences without the possibility of parole if they had known that was an option. Lawmakers in the Texas House have passed legislation during several sessions attempting to clarify the instructions but those bills failed to get support from the Senate....

Alabama officially sets execution date for historic effort to use nitrogen gas for completing death sentence

I have been noting on this blog for at least a decade some of the talk about whether nitrogen gas might perhaps be the best modern execution alternative to lethal injection (see some of the posts below).   But now, as reported in this AP piece, it seems Alabama is actually on track to actually utilize this long-discussed means of completing a death sentence: 

Alabama has set a January execution date for what would be the nation’s first attempt to put an inmate to death using nitrogen gas.  Alabama Gov. Kay Ivey on Wednesday announced a Jan. 25 execution date for Kenneth Eugene Smith using the new method.  Smith was one of two men convicted in the 1988 murder-for-hire slaying of Elizabeth Sennett in northwestern Alabama.

“The execution will be carried out by nitrogen hypoxia, the method previously requested by the inmate as an alternative to lethal injection,” Ivey spokesperson Gina Maiola wrote in an emailed statement.  The statement referenced how Smith’s attorneys noted the state was developing the nitrogen method when fighting previous efforts to execute him by lethal injection.

The announcement of the execution date moves Alabama closer to becoming the first state to attempt an execution by nitrogen gas, although there will be a legal fight before it is used.  Nitrogen hypoxia has been authorized as an execution method in Alabama, Oklahoma and Mississippi, but no state has used it.

Smith’s attorneys on Thursday filed a lawsuit in federal court seeking to stop the execution, saying Alabama was attempting to make their client the “test subject for this novel and experimental method.”  They noted the state tried but failed to execute Smith by lethal injection last year.  The Alabama Department of Corrections called off the execution when the execution team could not get the required two intravenous lines connected to Smith....

A divided Alabama Supreme Court last week granted the state attorney general’s request to authorize Smith’s execution.  It is the responsibility of the governor to set the exact execution date....

Nitrogen makes up 78% of the air inhaled by humans and is harmless when inhaled with proper levels of oxygen. Under the proposed procedures, a mask would be placed over the inmate’s nose and mouth and their breathing air would be replaced with nitrogen, depriving them of the oxygen needed to stay alive.  The nitrogen “will be administered for 15 minutes or five minutes following a flatline indication on the EKG, whichever is longer,” according to the execution protocol.

A few (of many) prior related posts:

• Is nitrogen gas the best modern execution alternative to lethal injection?
• Effective discussion of nitrogen gas as execution method alternative
• Oklahoma embracing nitrogen gas instead of lethal drugs as method of execution
• Examining whether nitrogen gas could be a viable new method for executions 
• "Execution by Nitrogen Hypoxia: The Search for Scientific Consensus"

Ohio prosecutors talking up nitrogen gas executions as a way to reboot state's dormant machinery of death

I flagged in this post a few days ago the dormant state of the death penalty in Ohio.  There has not been an execution in the Buckeye State in over five years even though the state has 122 condemned murderers currently on death row, and 31 of these murderers have exhausted all standard appeals.  The primary reason for this de facto execution moratorium has been the state's ugly history in carrying out lethal injection executions and extensive litigation surrounding the varying drugs and methods used therein.  That history has prompted Governor Mike DeWine to keep pushing back and pushing back execution dates for death row inmates while suggesting to the Ohio General Assembly that they need to address improving execution methods head on.

This new local article, headlined "Prosecutors want to resume executions using nitrogen hypoxia," reports that Ohio prosecutors have a new(?) idea for getting the state's machinery of death up and running again:

It's been five years since Ohio has executed its death penalty. Gov. Mike DeWine delayed executions due to limited access of the drug used for the lethal injection.  But Ohio prosecutors are looking to resume executions through alternative methods.  "We just want to find a pathway forward for the victims of these crimes," said Louis Tobin, the executive director of Ohio Prosecuting Attorneys Association.  

Tobin said Ohio needs to continue its using the death penalty to provide proper justice.  He said if there is a shortage of the drug needed for the lethal injection, Ohio can use nitrogen hypoxia.  "Filings by the defense bar and federal death penalty pleadings and in (the) Supreme Court of Ohio pleadings have acknowledged that it would be a painless method of execution," Tobin said.   The process of nitrogen hypoxia works by removing oxygen and letting a person die by inhaling nitrogen gas....

"Somebody who murders one young child is already facing that possibility without a death penalty," Tobin said, "and without the additional accountability that it provides, you're allowing them to kill the second and third child for free. They're free kills. So the death penalty is what justice demands sometimes. Either we're going to be a state that prioritizes public safety and prioritizes the victims of crime or we're not." 

In response to the Ohio Prosecuting Attorneys Association proposal, the governor’s office said only the Ohio General Assembly can change the methods for applying the death penalty.

As long-time readers know, there has long been discussion of execution by nitrogen gas as an alternative to lethal injections.  This discussion really picked up over the last decade as more and more states struggled with their lethal injection protocols.  And  in 2018, Alabama enacted a statute that formally authorized execution by nitrogen, and at least a few other states have execution protocol laws that would allow using this novel execution method.  But, as of now, no modern execution in the US has been completed using nitrogen gas and any efforts to switch execution methods in Ohio would surely engender significant state and federal litigation.

For a variety of reasons, I expect that Ohio's death penalty will remain dormant for the rest of Governor DeWine's time in office.  But, in a couple of years, a number of folks with a track record of support for the death penalty will likely start running to be Ohio's next Governor and it will be very interesting to see if the state's dormant death penalty gets any more attention.  In the meantime, folks can read up on nitrogen gas as an execution method via a small sample of prior posts on the topic: 

• Is nitrogen gas the best modern execution alternative to lethal injection?
• A worldly perspective on different execution methods
• Should problems with lethal injection prompt return of other execution methods?
• Effective discussion of nitrogen gas as execution method alternative
• Examining whether nitrogen gas could be a viable new method for executions 
• Making the case against nitrogen as an execution method 
• "Execution by Nitrogen Hypoxia: The Search for Scientific Consensus"
• Might Alabama become the first state to use nitrogen gas for an execution?

Alabama completes execution (seemingly without difficulty) after three Justices dissent from stay denial based on execution protocol concerns

As reported in this AP article, "Alabama executed a man on Friday for the 2001 beating death of a woman as the state resumed lethal injections after failed executions prompted the governor to order an internal review of procedures." Here is more:

James Barber, 64, was pronounced dead at 1:56 a.m. after receiving a lethal injection at a south Alabama prison. “Justice has been served. This morning, James Barber was put to death for the terrible crime he committed over two decades ago: the especially heinous, atrocious, and cruel murder of Dorothy Epps,” Attorney General Steve Marshall said in a statement.

Barber was convicted and sentenced to death for the 2001 beating death of Epps. Prosecutors said Barber, a handyman, confessed to killing the 75-year-old with a claw hammer and fleeing with her purse. Jurors voted 11-1 to recommend a death sentence, which a judge imposed. Before he was put to death, Barber told his family he loved them and apologized to Epps’ family....

It was the first execution carried out in Alabama this year after the state halted executions in November. Alabama Gov. Kay Ivey announced a pause on executions to conduct an internal review of procedures.... Alabama’s governor announced in February that the state was resuming executions. Alabama Corrections Commissioner John Hamm said prison system had added to its pool of medical professionals, ordered new equipment and conducted additional rehearsals.

The last-minute legal battle centered on Alabama’s ability to obtain intravenous access in past executions. Barber’s attorneys unsuccessfully asked the courts to block the execution, saying the state has a pattern of failing “to carry out a lethal injection execution in a constitutional manner.”...

Alabama Corrections Commissioner John Hamm said the two intravenous lines were connected to Barber with “three sticks in six minutes.” The Supreme Court denied Barber’s request for a stay without comment. Justice Sonia Sotomayor wrote a dissent from the decision that was joined by Justice Elena Kagan and Justice Ketanji Brown Jackson. She said the court was allowing “Alabama to experiment again with a human life.”

Justice Sotomayor's opinion dissenting from the denial of the application for a stay runs 11 pages and is available at this link. Here is how it gets started:

Just last year in Alabama, in three consecutive executions by lethal injection, prison officials spent multiple hours digging for prisoners’ veins in an attempt to set IV lines.  Two of the men survived and reported experiencing extreme pain, including, in one case, nerve pain equivalent to electrocution.  After those executions failed, the State began what it claimed would be a “top-to-bottom” review of its lethal injection process.  Barber v. Governor of Ala., ___ F. 4th ___, ___, 2023 WL 4622945, *13 (CA11, July 19, 2023) (Pryor, J., dissenting).  During this review, conducted by the very agency that botched the executions, the State offered no explanations for the failures and reported “[n]o deficiencies” in its protocols. Id., at *15.

Now, the State seeks to execute James Edward Barber. Barber has timely raised an Eighth Amendment method of execution claim in federal court, arguing that he will be subject to the same fate as last year’s prisoners.  Yet Alabama plans to kill him by lethal injection in a matter of hours, without ever allowing him discovery into what went wrong in the three prior executions and whether the State has fixed those problems.  The Eighth Amendment demands more than the State’s word that this time will be different.  The Court should not allow Alabama to test the efficacy of its internal review by using Barber as its “guinea pig.”  Id., at *11.  It should grant Barber’s application for a stay of his execution.

Justice Thomas, joined by Justice Alito, dissents from SCOTUS denial of cert regarding challenge to execution methods

The particulars of constitutional challenges over execution methods has generated three modern Supreme Court Eighth Amendment rulings (Baze, Glossip, and Bucklew).  Though the state prevailed in all these rulings against condemned prisoners' various attacks on various lethal injection protocols, litigation over execution methods are still common and the applicable Eighth Amendment jurisprudence remains contested.  These realities provide the background for a dissent from the denial of cert in this morning's SCOTUS order list today by Justice Thomas, joined by Justice Alito, in Hamm v. Smith, No. 22–580. Here are excerpts from the intricate six-page dissent:

In this petition, the State now asks this Court to summarily reverse the Eleventh Circuit’s holding that Smith pleaded a viable Eighth Amendment claim. I would do so. The judgment below rests on flawed Circuit precedent that is irreconcilable with our method-of-execution case law....

In 2018, Alabama enacted a statute authorizing execution by nitrogen hypoxia for inmates who elected that method within 30 days of their sentences becoming final or, for those whose sentences were already final before June 1, 2018, within 30 days of that date.  Ala. Code §15– 18–82.1(b)(2). (Smith did not elect nitrogen hypoxia, so lethal injection remains the only method of execution authorized by state law in his case. §15–18–82.1(a).)  Nearly five years later, Alabama has yet to carry out any execution by nitrogen hypoxia or to finalize a protocol for implementing that method — which “ha[s] never been used to carry out an execution and ha[s] no track record of successful use” in any jurisdiction. Bucklew, 587 U. S., at ___ (slip op., at 22) (internal quotation marks omitted).

[T]he Eleventh Circuit has treated the existence of this Alabama statute as relieving inmates like Smith of their burden to plead and prove that nitrogen hypoxia is feasible and readily implemented in fact.... [But] whether the State has authorized the proffered alternative as a matter of state statutory law has no relevance to the plaintiff ’s burden of showing a constitutional violation.  Bucklew has already explained why: “[T]he Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the State’s choice of which methods to authorize in its statutes.” 587 U. S., at ___–___ (slip op., at 19–20)....

When the question is whether the Eighth Amendment requires a State to replace its chosen method with an alternative method in executing the plaintiff, it is simply irrelevant, without more, that the State’s statutes authorize the use of the alternative method in other executions that are to take place sometime in the indefinite future.  Here, Smith alleged only that, and nothing more. He therefore failed to state a claim, and the Eleventh Circuit erred by holding otherwise.

The Eleventh Circuit’s error is not only plain but also serious enough to warrant correction. Even if “the burden of the alternative-method requirement ‘can be overstated,’” Bucklew, 587 U. S., at ___ (KAVANAUGH, J., concurring) (slip op., at 1), it remains an essential element of an Eighth Amendment method-of-execution claim, and it must be appropriately policed lest it become an instrument of dilatory litigation tactics.  The comparative analysis set forth in Baze, Glossip, and Bucklew contains an inherent risk of incentivizing “an inmate intent on dragging out litigation . . . to identify only a method of execution on the boundary of what’s practically available to the state.”  Middlebrooks v. Parker, 22 F. 4th 621, 625 (CA6 2022) (Thapar, J., statement respecting denial of rehearing en banc).  The Eleventh Circuit’s approach of treating any statutorily authorized method as available as a matter of law — even an entirely novel method that may not be readily implementable in reality — only heightens that danger.  In turn, and as a result, it “perversely incentivize[s] States to delay or even refrain from approving even the most humane methods of execution” any earlier than the moment they are prepared to put them into practice.  Price v. Dunn, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring in denial of certiorari) (slip op., at 11).

Texas completes its fourth execution of 2023

As reported in this AP article, a "Texas inmate convicted of fatally stabbing his estranged wife and drowning her 6-year-old daughter in a bathtub nearly 14 years ago was executed on Tuesday."  Here are more details:

Gary Green, 51, received a lethal injection at the state penitentiary in Huntsville.  He was condemned for the September 2009 deaths of Lovetta Armstead, 32, and her daughter, Jazzmen Montgomery, at their Dallas home. Green’s attorneys did not file any appeals seeking to stop the execution.

A Buddhist spiritual adviser chosen by Green stood beside the death chamber gurney at the inmate’s feet and said a brief prayer. Green then apologized profusely when asked by the warden if he had a final statement.... 

Instead of inserting the IV needles in each arm, prison technicians had to use a vein in Green’s right arm and a vein on the top of his left hand, delaying the injection briefly for Green, who was listed on prison records as weighing 365 pounds (165 kilograms)....  He was pronounced dead 33 minutes later, at 7:07 p.m.

Ray Montgomery, Jazzmen’s father and one of the witnesses, said recently that he wasn’t cheering for Green’s execution but saw it as the justice system at work. “It’s justice for the way my daughter was tortured.  It’s justice for the way that Lovetta was murdered,” said Montgomery, 43.  He and other witnesses did not speak with reporters afterward....

In prior appeals, Green’s attorneys had claimed he was intellectually disabled and had a lifelong history of psychiatric disorders.  Those appeals were rejected by the U.S. Supreme Court and lower appeals courts.  The high court has prohibited the death penalty for the intellectually disabled, but not for people with serious mental illness.

Authorities said Green committed the killings after Armstead sought to annul their marriage....  Armstead was stabbed more than two dozen times, and Green drowned Jazzmen in the home’s bathtub.  Authorities said Green also intended to kill Armstead’s two other children, then 9-year-old Jerrett and 12-year-old Jerome.  Green stabbed Jerrett but both boys survived....

Josh Healy, one of the prosecutors with the Dallas County District Attorney’s Office that convicted Green, said the boys were incredibly brave. Green “was an evil guy. It was one of the worst cases I’ve ever been a part of,” said Healy, now a defense attorney in Dallas....

Green’s execution was the first of two scheduled in Texas this week. Inmate Arthur Brown Jr. is set to be executed Thursday. Green was the eighth inmate in the U.S. put to death this year.

He was one of six Texas death row inmates participating in a lawsuit seeking to stop the state’s prison system from using what they allege are expired and unsafe execution drugs. Despite a civil court judge in Austin preliminarily agreeing with the claims, four of the Texas inmates including Green have been executed this year.

New Arizona Gov pledging not to allow new scheduled execution to go forward

As reported in this AP article, headlined "Arizona Gov. Katie Hobbs refuses to proceed with execution set by court," the new Arizona Governor is continuing to promise to block executions in her state pending a review of state execution protocols. Here are the basics:

Arizona Gov. Katie Hobbs vowed Friday that her administration won’t carry out an execution even though the state Supreme Court scheduled it over the objections of the state’s new attorney general.  The Democratic governor’s promise not to execute Aaron Gunches on April 6 for his murder conviction in a 2002 killing came a day after the state Supreme Court said it must grant an execution warrant if certain appellate proceedings have concluded — and that those requirements were met in Gunches’ case.

Last week, Hobbs appointed retired U.S. Magistrate Judge David Duncan to examine the state’s procurement of lethal injection drugs and other death penalty protocols due to the state’s history of mismanaging executions.  “Under my administration, an execution will not occur until the people of Arizona can have confidence that the state is not violating the law in carrying out the gravest of penalties,” Hobbs said in a statement Friday.

Attorney General Kris Mayes’ office has said it won’t seek court orders to carry out executions while Hobbs’ review is underway.  Mayes, a Democrat who took office in January, tried to withdraw a request by her Republican predecessor, Mark Brnovich, for a warrant to Gunches.  The court declined to withdraw the request on Thursday.

The court said Hobbs’ review “does not constitute good cause for refraining from issuing the warrant.”  Mayes’ office declined to comment on Hobbs’ promise not to carry out the execution next month. Hobbs maintains that while the court authorized Gunches’ execution, its order doesn’t require the state to carry it out.

Dale Baich, a former federal public defender who teaches death penalty law at Arizona State University, said Hobbs can use her authority as the state’s chief executive when the state believes it cannot carry out an execution in a constitutionally acceptable manner.  “What the governor did is not unique,” said Baich, who applauded Hobbs’ move. “Governors in Alabama, Ohio and Tennessee recently used their authority to pause executions because they had serious questions about the protocols in their states.”...

Arizona, which has 110 prisoners on death row, carried out three executions last year after a nearly eight-year hiatus following criticism that a 2014 execution was botched and because of difficulties obtaining execution drugs.  Since resuming executions, the state has been criticized for taking too long to insert an IV for lethal injection into a prisoner’s body in early May and for denying the Arizona Republic newspaper’s request to witness the last three executions.

Gunches is scheduled to be executed on April 6 for the 2002 killing of Ted Price, his girlfriend’s ex-husband, in Maricopa County. Gunches, who isn’t a lawyer, represented himself in November when he asked the Supreme Court to issue his execution warrant so justice could be served and the victims could get closure.  In Brnovich’s last month in office, his office asked the court for a warrant to execute Gunches.  But Gunches withdrew his request in early January, and Mayes asked for the execution warrant submitted during Brnovich’s tenure to be withdrawn.