First Nitrogen Gas Execution

Prof. Michael Dorf, who I usually agree with (his co-bloggers are something of another story), has an intriguing new blog post on the latest grant to hear about the constitutionality of Richard Glossip's execution.

Glossip was sentenced to die for his role in the 1997 murder of Barry Van Treese. He did not personally kill him. He was sentenced for his part in having someone else murder Treese. This person testified for the prosecution and avoided the death penalty.

The case of Glossip v. Gross upheld the lethal injection protocol established to execute him. He never was executed. Oklahoma re-examined its execution process, waited a few years, and is now trying to play catch-up by being a leading state in recent executions. The opinion was 5-4. Justice Breyer (with Ginsburg) argued the death penalty is likely unconstitutional.

Prof. John Bessler (Senator Amy Kloubuchar's husband) published the dissent as a book, adding commentary. His book on the Eighth Amendment is also very good. Glossip's case has additional problems, which even the state of Oklahoma grants.

Not enough to release him. It has been over twenty-five years. In some countries, that would be considered cruel and unusual punishment for a murderer. I think it is enough for him.

Anyway, Prof. Dorf explains the role of the courts in handing down executions. We saw that again with the execution of Kenneth Smith. Like Oklahoma, Alabama had problems executing people.

They had problems executing Kenneth Smith personally. They couldn't accomplish it a couple of years ago. Alabama examined its system. They now allow thirty hours to carry out an execution order, allowing more time after the Supreme Court decides last-minute appeals. Sometimes, the Supreme Court hands the final order in the evening, leaving little time for a midnight deadline.

They also agreed not to use lethal injection to execute Kenneth Smith. They would use the never used, though a few states in the last few years established it as an option, nitrogen gas method. As was repeatedly the case over the centuries, some promised nitrogen gas would be a safe and humane new thing.

During the oral argument for Glossip v. Gross, Justice Alito cited legal euthanasia laws as an example of how it was possible to kill people humanely. 

The problem is that executions are not the same thing as voluntary euthanasia. Also, the procedures used are different:

Nitschke said the right-to-die movement long ago moved away from using masks such as the one in Alabama, instead favoring methods such as hoods, specially designed bags, and pods. Another key difference, he stressed, is that people are calm and cooperative in their assisted suicide, while a prisoner is anxiously awaiting an execution against his will.

Executions are also not like euthansizing pets. Overall, it is not euthanasia. 

Others were much less sure. One anti-death penalty professor, Prof. Corinna Lain (great lady), argued if you have the death penalty, the firing squad would be the best option. We don't like that. It's too brutal in our eyes.

Kenneth Smith was part of a horrible waste thirty-five years ago. A financially strapped minister hired someone to murder his wife for the insurance. He paid the guy $3000. This guy (who has died in prison) hired two others, paying them a thousand each. They murdered her. The husband soon after committed suicide. The juries sentenced each to life in prison. The jury overturned them (the Smith vote was 11-1). The other guy was executed by lethal injection in 2010.

Yes, overriding juries were allowed in the past. Alabama changed the policy but did not apply it retroactively. Okay. Well, is it acceptable to execute after botching the first attempt? A 1940s case said "yes" (5-4) with one justice saying that there might be a first attempt so bad to be an exception. The lawyers argued this was one such case. Alabama kept on botching executions. At some point, it was not just an innocent mistake.

It would be especially bad to try again using an untried method with an unclear protocol on how to do it. The specific procedures, including the correct drugs, have been a battle in recent years. A battle five members of the Supreme Court did not have much patience for. Actually, over our history, the Supreme Court has never found a specific procedure unconstitutional. This included the firing squad, electrocution, cyanide gas, hanging, and lethal injection.

This time, he predicts that Alabama’s protocol will cause him to suffocate and choke to death on his own vomit. I sincerely hope that he is not proven correct a second time.

With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.

The Supreme Court rejected without comment this argument. Then, the lawyers tried directly challenging the use of nitrogen gas, particularly in this particular case. For instance, there was an additional risk of him vomiting as it occurred. This was rejected 6-3 with the conservatives not explaining their vote again. This time, the liberals did explain. Sotomayor had the more eloquent and heartful dissent.

Kagan (with Jackson) had a brief dissent agreeing this was a special case with too much risk. The first accounts suggest the dissenters are right:

Witnesses saw Smith struggle as the gas began flowing into the mask that covered his entire face. He began writhing and thrashing between two and four minutes and was followed by around five minutes of heavy breathing.

I don't think the process was due. The state repeatedly had problems executing people. They were unable to execute Kenneth Smith. They decided to try again, agreeing to use a new, untried method. The details of the protocol were unclear. To quote Justice Blackmun, they continue to tinker with the machinery of death.

It continues to leave a lot to be desired. 

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The NYT recently had a very good piece (h/t FFRF) on an execution in Oklahoma last November. The pardon board voted 3-2 to commute his sentence. The governor rejected their proposal.

Philip Hancock, taking advantage of a right upheld by the Supreme Court, decided to have a humanist chaplain at his side. He went into prison as a Christian and left an atheist. There are also atheists in foxholes.

Religious freedom includes the freedom to have various beliefs and rituals. Birth and death are fundamental occasions. It is appropriate that federal law protects an evenhanded application of these execution rituals.