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A controversial execution in Alabama renews the fight over capital punishment

The state is using a new untested method that has prompted backlash.

A signs calls for a stop to experimental executions as activists protest in Alabama.
Anti-death penalty activists place signs along the road heading to Holman Correctional Facility in Atmore, Alabama, ahead of the scheduled execution of Kenneth Eugene Smith, on January 25, 2024.
Kim Chandler/AP
Li Zhou is a politics reporter at Vox, where she covers Congress and elections. Previously, she was a tech policy reporter at Politico and an editorial fellow at the Atlantic.

A controversial Alabama execution took place on Thursday, reigniting scrutiny of the death penalty and highlighting the enduring nature of the practice despite attempts to end it.

Physicians and human rights experts have condemned the execution — which relied on an untested method known as nitrogen hypoxia — due to concerns that it would be painful and inhumane. Alabama ultimately used this method to execute a man named Kenneth Eugene Smith, after the state botched his first scheduled execution in 2022 when it couldn’t find an accessible vein for a lethal injection. Smith was sentenced to the death penalty following a capital murder conviction in 1988.

“Tonight Alabama caused humanity to take a step backward,” Smith said in a statement ahead of the execution. Using nitrogen hypoxia, the state placed a mask over Smith’s head that contained nitrogen instead of oxygen, an action that eventually suffocated him.

Smith’s execution, and the uproar around it, occurred as opposition to the death penalty has increased in recent years.

Though a slim majority of Americans still back executions — Gallup’s November 2023 polling found a new low of 53 percent to be in favor of executing convicted murders — support has been declining for three decades, since a peak in 1994. Medical and ethical questions have also led critics to call for the abolition of the death penalty. And Gallup found that, for the first time, more people now feel the death penalty is unfairly applied than those who believe it’s fairly applied.

That’s been evident elsewhere, too, with some pharmaceutical companies refusing to supply lethal drugs and equipment to conduct executions. Corporations like Pfizer and Johnson & Johnson are among those that block the sale of drugs and medical supplies for this purpose. Politically, the idea has begun to take hold as well. As part of his presidential policy platform in 2020, President Joe Biden said he’d work to abolish the federal death penalty, a proposal he’s been scrutinized for failing to follow through on. More than 20 states have also abolished the death penalty.

States like Texas, Florida, and Alabama, meanwhile, have held out against this pressure, arguing that the death penalty is a fitting punishment and deterrent against violent crime. These states’ insistence on using the death penalty in an environment where there are fewer avenues for killing people has also led them to embrace more extreme measures, like firing squads and nitrogen hypoxia.

Alabama’s decision to pursue an untested method only added to longstanding concerns that have been raised about the death penalty, while underscoring how committed some states are to keeping it.

The ongoing fight over the death penalty, briefly explained

Critiques regarding the use of capital punishment have increased in the last decade as opponents have emphasized the racial disparities in its application, detailed worries about how humane it is, and cited cases when innocent people have been convicted. Among the chief problems that have been raised are that people of color are much more likely to be sentenced to executions than white defendants and evidence that it does little to deter violent crime.

“I think the various practical problems of the death penalty have generated a public opinion movement against it,” says Frank Baumgartner, a political science professor at the University of North Carolina at Chapel Hill who has specialized in the study of capital punishment. “It started with innocence but has spread to botched executions, cost overruns, time delays, [and] lack of deterrence value.”

Democrats, in particular, have embraced efforts to roll back or get rid of the death penalty entirely. In the Gallup survey, just 32 percent of Democrats said the death penalty should be applied to someone who committed murder while 81 percent of Republicans said the same.

Actions by Republican-led states, like Alabama, have underscored the contrast between the two parties. Those who favor the continued application of capital punishment argue that it deters violent crimes, that it’s fitting retribution for crimes like murder, and that it brings justice to the families of victims. The case for the death penalty is also often made in conjunction with other “law and order” rhetoric during times when violent crime rates are high.

The use of the death penalty overall, however, has been on the decline. Although 27 states still allow the death penalty, 14 of those have not conducted any executions in the past 10 years, according to CNN. Executions have also dwindled since 1999, which marked a recent high when nearly 100 people were killed. In 2023, 24 people were executed across five states.

These declines are due to political backlash toward capital punishment, changes in the law that have raised the legal bar for such sentences, declines in crime in recent decades, and better representation for capital defendants.

“I think anytime a state engages in a highly controversial act concerning the death penalty, it adds one more pebble on top of a pebble mountain of opposition,” says Deborah Denno, a Fordham University law professor who has specialized in the study of capital punishment. “That said, the death penalty is deeply rooted in the US — it’s part of our identity — and it’s going to take a massive number of pebbles to change that fact.”

Update, January 26, 12:20 pm ET: This story was originally published on January 25 and has been updated with media reports from Alabama.

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