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On January 25, 2024, Alabama executed Kenneth Eugene Smith by inert gas asphyxiation (also known as “nitrogen hypoxia”), a method never tried before on a prisoner. After decades in prison and numerous appeals, Smith died the death of an unlucky laboratory animal—suffering terror, torture, experimentation. It was only after a second execution attempt that death finally came—and that’s perhaps one of the most outrageous parts of his ignominious story.
The American death penalty is rooted in irreconcilable philosophical and legal contradictions. The Constitution requires heightened rational review of every case. At the same time, the deaths are motivated by the most irrational impulses of all—rage and revenge. The Constitution also prohibits gratuitously degrading inmates, yet every killing method ever used has a history of degenerating into something out of a Rob Zombie movie.
Kenneth Smith’s execution exposed these contradictions in ways no other case has. For over a century, our criminal justice system has repeatedly tried and failed to find a humane way to kill its worst offenders. With Smith’s case, the execution-scientists chasing this white whale failed yet again. “Insanity,” the saying goes [ [link removed] ], “is repeating the same mistakes and expecting different results.”
Death Penalty Problems
Before we look at the problem of “re-executions,” we should first examine the problems with capital punishment itself. The death penalty is premised on three conflicting mandates, all of which have been repeatedly affirmed by the Supreme Court. The first is that, because death is a uniquely severe punishment, courts have a special duty to apply heightened scrutiny before imposing it. This is why, on average, appellate and post-conviction litigation keeps prisoners on death row for more than 18 years [ [link removed] ]. The idea is that we need to be especially sure that capital punishment is reserved only for those who deserve it most and that it will be imposed in a way that befits a civilized society.
The second is the constitutional requirement, found in the Eighth Amendment’s cruel and unusual punishments provision, that criminal sentences remain dignified. Torture is prohibited, as are punishments that create an unacceptably high risk that inmates will experience “superadded pain, terror, or disgrace [ [link removed] ].” While a certain amount of these three things is inevitable in any death penalty case, they must be minimized, to the extent possible, and never inflicted for their own sake. The prisoner’s dignity, Chief Justice Earl Warren wrote [ [link removed] ] back in 1958, is “[t]he basic concept underlying the Eighth Amendment.”
While in the course of history human ingenuity has come up with countless ways to kill, executing a prisoner with the dignity the Constitution requires has proved a daunting task. Some methods promise relative painlessness. “The French guillotine never fails,” one newspaper wrote [ [link removed] ] after a botched 19th-century execution. However, beheadings are bloody spectacles. Courts would—and should—find them undignified. Others, like lethal injection, seek to elaborately stage a peaceful transition from sleep to death but, in practice, sometimes function like medieval torture chambers. Just 10 years ago, the court reminded us [ [link removed] ] that “The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.” Undignified punishments remain, in theory at least, strictly forbidden.
The third mandate is that the death penalty satisfy the outrage and primal urge that shocked communities feel to “even the score” after one of their own has been victimized. Supreme Court justices have repeatedly explained that retribution is a legitimate reason for executing the most blameworthy offenders, and states continue to kill for that purpose. Retribution and revenge are, theoretically, distinct concepts; vengeance connotes a desire for retaliatory harm rather than justice and has long been officially frowned upon as a basis for punishment. However, in capital cases the two concepts have always tended to function synonymously and interchangeably.
Rage is an inherently irrational impulse—and when strong enough, it can make thoughtful deliberation impossible. Yet at the same time, it’s a perfectly natural and foreseeable response to violent crime. Judges have warned that without creating a legal channel through which to filter popular rage, the chaos of vigilantism will emerge. Legal scholar Margaret Jane Radin calls this rationale for the death penalty “revenge utilitarianism [ [link removed] ].” This is the motor that drives today’s executions—and has for some time.
The ghost of Leo Frank still haunts the American death penalty. Frank was convicted of murdering 13-year-old Mary Phagan in 1913, and he was sentenced to death. But two years later, after his sentence was reduced from death to life in prison, a mob of 25 men kidnapped Frank from a prison farm and hanged him from a tree. That the evidence showed that Frank was likely innocent [ [link removed] ] meant nothing to those holding the rope. “When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’” Justice Potter Stewart once instructed [ [link removed] ], “then there are sown the seeds of anarchy—of self-help, vigilante justice, and lynch law.”
This is at least partly why even political officials who publicly oppose the death penalty, like President Joe Biden [ [link removed] ] and Attorney General Merrick Garland [ [link removed] ], often nonetheless continue to defend the capital sentences of the most despised defendants in court, as the Biden administration has in the cases of Boston Marathon bomber Dzhokhar Tsarnaev [ [link removed] ] and racist mass murderer Dylann Roof [ [link removed] ]. The tacit understanding is that politicians and judges kill so private citizens won’t. “This function may be unappealing to many,” Justice Stewart wrote [ [link removed] ] in a case upholding a death sentence, “but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.”
With data overwhelmingly refuting the argument that capital punishment has a deterrent effect [ [link removed] ] on crime, retribution—vengeance, really—is the only plausible explanation why executions remain. The first two death penalty mandates—the need for heightened scrutiny and the need for dignity in executions—can work well together: Rationally reviewing cases to find a punishment that is fair and dignified is precisely what an enlightened justice system should do. However, reason and dignity are irreconcilable with the dark impulses that seek revenge. As the need for vengeance rises, reasoned judgement and human dignity both evaporate.
The entropy of this conflict has turned courtrooms into macabre theaters of the absurd. As executions draw near and lawyers begin to focus their arguments on the procedures by which their client is going to be killed, judicial opinions can turn morbid and surreal. For example, in 1994, all of the judges on the United States Court of Appeals for the Ninth Circuit meticulously considered [ [link removed] ] the length, width, texture, treatment and elasticity of the hangman’s rope that would be used to kill Charles Rodman Campbell.
In a 2008 case on lethal injections, Chief Justice John Roberts wrote [ [link removed] ], “Our society has ... steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection.” Rarely has a judge so intelligent gotten legal history so backwards. Not only there been no progress toward finding a humane manner of killing, but lethal injection, the last stage in the evolution he describes, has become such a manifest failure that states are now reverting to his evolution’s starting point, the firing squad [ [link removed] ].
The hope that we can find a form of painless execution—or one that is minimally painful—remains a pipe dream. And that is particularly problematic when executions fail.
The Impossible Pursuit of Painless Executions
On May 16, 1879, Wallace Wilkerson spent 27 minutes screaming and bleeding to death after marksmen missed the paper target that been put over his heart. Just a few months before, the Supreme Court had ruled that his sentence of death by firing squad was constitutional. Ever since this mishap, the court, and society generally, has struggled to find a well-reasoned, dignified manner of satisfying the public’s demand for our most extreme punishment. It’s been a fool’s errand.
First came the electric chair. At the time of Wilkerson’s attempted execution, botched hangings were a far greater problem than bad marksmen. Prisoners routinely strangled to death slowly. But as Thomas Edison’s light bulb began to light up the nation, dentist Alfred Southwick combined the chair his patients sat in with electricity to invent what he thought would be the world’s most benign killing apparatus. He’d witnessed an accidental death by electrocution—it seemed quick, and he didn’t observe much suffering. According to one of the judges who issued an opinion [ [link removed] ] in the case of William Kemmler, the first man sentenced to die in the electric chair, Southwick’s creation was “certainly to produce instantaneous, and therefore painless, death.”
But as his execution date neared, Kemmler was terrified the electricity was going to torture him to death. His last words [ [link removed] ], spoken to the warden, were: “Take it easy and do it properly. I’m in no hurry.” Before that, he had begged [ [link removed] ]: “Don’t let them experiment on me more than they ought to.”
The first jolt didn’t kill him, so he was shocked again. Kemmler’s face began to bleed. When it was over, his back was burnt black all the way to his spine and the room reeked of charred flesh. In a contemporaneous article [ [link removed] ] titled “Far Worse Than Hanging,” a New York Times reporter wrote that Kemmler’s death was “a disgrace to civilization.”
Gas became the next hope in the pursuit of painless executions. In 1921, Nevada passed the “Humane Death Bill,” based in part on the writings of toxicologist Dr. Allan McLane Hamilton, who’d been sickened by a New York electric chair execution he’d witnessed. Hamilton marveled at how certain gases were being used to anesthetize patients [ [link removed] ] before surgery and thought they’d make a similarly peaceful killing agent.
Gee Jon, a Chinese immigrant convicted of murder, became the first prisoner to be executed via gas. Jon passed out after “within four or five seconds [ [link removed] ]” and while today at least one scholar disputes [ [link removed] ] contemporaneous reports that the execution went smoothly, it certainly wasn’t the shocking exhibition Wilkerson’s and Kemmler’s had been. “There was no evidence of suffering or pain,” according to one Nevada newspaper [ [link removed] ]. Soon, gas chambers became popular among many western and southern states.
However, the particular poison chosen for Gee’s and other executions—cyanide—often had the opposite effect of the anesthetic gases doctors had been putting patients to sleep with. It caused pain instead of preventing it. While some inmates died without many visible signs of distress, like Gee Jon, too many spent their final moments writhing in agony. Gee Jon’s death had set a false precedent—and cyanide gassing persisted as an execution method in the United States until 1999.
Looking back on the history of cyanide gassing in the U.S., two things stand out. The first is that the grotesque death throes many of the inmates suffered often seemed to occur as a natural physiological response to inhaling the fumes, not from a procedural glitch or defect. Cyanide inhalation wreaks havoc on the body, causing asphyxiation, convulsions, drooling, thrashing and other involuntary movements. One court described [ [link removed] ] it this way: “The experience of ‘air hunger’ is akin to the experience of a major heart attack [ [link removed] ], or to being held under water. Other possible effects of the cyanide gas include tetany [ [link removed] ], an exquisitely painful contraction of the muscles, and painful build-up of lactic acid and adrenaline. Cyanide-induced cellular suffocation causes anxiety, panic, terror, and pain.” During a 1983 execution [ [link removed] ] in Mississippi, the prisoner jerked violently for minutes, smashing his head against a steel beam before finally expiring.
The second is that, because executions took place in a sealed chamber, as soon as the cyanide began to fill the room, there was no way to stop the process, even if the inmate received a last-minute reprieve. In 1957, California’s governor called the line set up outside the chamber during Burton Abbott’s execution. The warden told the governor that it was too late to stop. The bestselling memoirist and notorious “Red Light Bandit,” Caryl Chessman, was denied a stay because, as the poisonous mist was spreading, a judge’s secretary nervously dialed the wrong number [ [link removed] ].
Oklahoma became the first state to adopt lethal injection in 1977. Photos and written accounts describe lethal injection rooms that have a hospitalesque feel to them. The death chamber looks like a post-operation recovery room and, though the Hippocratic oath forbids actual doctors from participating [ [link removed] ], staff often dress and use the same equipment as working medical professionals. When done properly, the process gently transitions the inmate to sleep and then death with the appearance of end-of-life hospice care. This is designed to minimize the stress of participating executioners, witnesses and inmates. However, among current practices, lethal injection may be the least humane of all.  
It’s certainly the least reliable. There are more botched lethal injection executions, both in percentage and raw total, than any other method. However, it’s the unknown number of immobilized “Johnny Got His Gun [ [link removed] ]”-type prisoners, made to suffer in silence, that’s most haunting. While lethal injection drugs differ from state to state, many inmates are injected with a paralytic, like pancuronium bromide, that inhibits movement, even during the utmost pain and distress. This can create the false perception of a peaceful death. Justice John Paul Stevens, who after decades of grappling with capital punishment outspokenly repudiated it [ [link removed] ], once warned [ [link removed] ] that this “masking” “creates a risk that the inmate will suffer excruciating pain before death occurs.”
In a magisterial article [ [link removed] ] on execution methods, Deborah W. Denno describes the first lethal injection execution—that of Charles Brooks Jr. in 1982—as a “botched procedure.” Because Brooks had been an intravenous drug user, executioners struggled to find a usable vein before finally administering an overdose of anesthesia, which caused Brooks a lingering death. This bad start portended an even worse future: In 2022, 37% [ [link removed] ] of lethal injections were botched.
Lethal ... at Long Last
Perhaps the greatest proof that there’s something wrong with the death penalty is that it can stir sympathy for someone like Kenneth Smith. On March 18, 1988, Smith murdered Elizabeth “Liz” Sennett, a loving mother and grandmother, in her rural Alabama home. Liz was the luckless wife of a hypocrite: Charles Sennett was a scheming, two-timing Christian preacher who came to value insurance proceeds more than his wife’s life. With funds borrowed from his mistress, he hired Smith and two others to murder Liz.
Charles wanted the assassination to look like a burglary gone wrong. The killers waited until Liz was home alone and knocked on the door. They told Liz that Charles had given them permission to scout the property surrounding the house as a potential hunting location. Her guard down, she thought nothing of it when one asked to use the bathroom.
They weren’t criminal masterminds: While the murder was planned in advance, many of their decisions appear to have been made spontaneously. In addition to stabbing Liz eight times with a hunting knife, they bludgeoned her with items they happened to have found around the house, including a galvanized pipe and a fire poker. Smith left his hat at the crime scene. Of all places, the trio dumped their murder weapons on the Sennetts’ property, where they were easily recovered. Police found the Sennetts’ VCR, with Liz’s blood still on it, in Smith’s house. After Smith’s arrest, he confessed. His words were used against him at trial, as he’d been warned they would be—and he was convicted and sentenced to death.
As his November 2022 execution date drew near, Smith was a wreck. Like William Kemmler, he feared being tortured to death. His fears made perfect sense: Botched lethal injections had been national news for years. Alabama’s track record was particularly worrisome. That state’s previous two lethal injections, both earlier that year, had been horror shows, inflicting great pain upon the two inmates, and there was reason to believe Alabama was either unwilling or incapable of fixing the problem.
Alabama’s courts and executioners had first been put on notice in 2018 when executioners couldn’t kill Doyle Lee Hamm—yet the botched executions continued. Like Charles Brooks Jr., Hamm had been an intravenous drug user, and executioners had been warned that finding a vein to inject poison into would be difficult. But they were undeterred. They poked many holes throughout Doyle Lee Hamm’s body, including six in his groin. Hamm survived the ordeal with cuts, bruises, swelling, discoloration, a punctured bladder, blood in his urine and, needless to say, tremendous pain. Hamm’s lawyer would explain the severity of the injuries in a court filing that includes photos, which can be viewed online. It isn’t for the faint of heart [ [link removed] ]. Alabama agreed not to try to execute Hamm again, instead giving him a de facto sentence of life in prison.
Likewise, the two lethal injection attempts immediately preceding Smith’s execution went awry. On July 28, 2022, with no press or witnesses present, Joe Nathan James was likewise poked and sliced [ [link removed] ] by executioners countless times before gaining venous access. His “hands and wrists had been burst by needles [ [link removed] ], in every place one can bend or flex,” according to The Atlantic’s Elizabeth Bruenig, who viewed James’s body at the morgue.
Less than two months later, Alan Miller was “slapped, poked, prodded, and punctured” over the course of two hours before executioners gave up and returned him to death row, where he remains to this day.
In short, Alabama’s lethal injection facility had become a torture chamber. Kenneth Smith was up next.
Smith provided courts with declarations from doctors attesting that executioners would have trouble finding a vein. One doctor explained that due to Smith’s prescription medications and heavyset frame, there was a high risk that the execution could go terribly wrong. But Smith and his doctors’ arguments were unavailing. In Glossip v. Gross [ [link removed] ], decided in 2015, the Supreme Court had announced [ [link removed] ] a set of universally binding constitutional rules that had made it nearly impossible for Smith to win. The court reasoned that because the death penalty is a constitutional punishment, there must be a constitutional way to carry it out. Inmates wouldn’t be permitted to argue that because they’ve been on death row awaiting an unconstitutional execution method, their lives should be spared. Instead, they had to first prove that the state’s method poses “an objectively intolerable risk” of cruelty, then further prove that they’d identified a substantially more humane and readily available method. This is a hill too steep for most death row inmates to climb.
Desperate to avoid what had happened to his predecessors, and barred from arguing for his life, Smith requested death by nitrogen gassing. While this form of execution was untried at that point, some death penalty states had been touting this method as the long-sought answer to capital punishment’s most vexing question. The promises were the same as with the previous methods: a quick, virtually painless death. One law review article confidently stated [ [link removed] ] that “[B]reathing nitrogen is no more painful than breathing helium from a party balloon, although without the squeaky voice.” Smith’s request was denied [ [link removed] ], and he kept his appointment with the needle. In a tragic twist of fate, unprecedented in death penalty history, he also got the punishment he asked for.     
As Smith feared, venous access proved impossible. Smith was strapped to a gurney that had been converted into an “inverse crucifix position [ [link removed] ]” and “stabbed with needles for one to two hours, including in his muscles,” causing him to scream. Executioners searched for a vein by moving the needles beneath the skin, a process called “fishing.” As executioners penetrated his “neck or collarbone,” Smith begged, “Is there no one who can stop this?” He felt several stabs into his chest before, finally, the death warrant expired and, like Miller two months before, he was sent back to death row as the state of Alabama prepared to kill him again.
Alabama was now ready to try nitrogen gassing. After enduring more than three decades on death row and what amounted to a mock execution, Smith’s will to live remained strong. He didn’t want to be Alabama’s “guinea pig,” as Justice Sonia Sotomayor would call him. He argued that Alabama hadn’t established a humane way to administer the gas and that the firing squad would be preferable to the crude protocol the state had in mind. The Supreme Court denied his request for reprieve. Justice Sotomayor’s dissent [ [link removed] ] describes Smith’s life between execution attempts as one filled with terror, nausea, psychiatric drugs and vomiting. And indeed, Smith’s fears were again prophetic.
Multiple witnesses, including independent journalists, described the gassing as a horrific sight. Smith struggled for breathable air, which put his body in a desperate state. The gas ultimately deoxygenated his brain and killed him. Associated Press journalist Kim Chandler reported [ [link removed] ] that “Smith began to shake and writhe violently, in thrashing spasms and seizure-like movements. ... The shaking went on for at least two minutes.” Lee Hedgepeth, an Alabama reporter who’d viewed four previous executions, told the BBC [ [link removed] ], “I’ve never seen a condemned inmate thrash in the way Kenneth Smith reacted to the nitrogen gas.”
Alabama’s Department of Corrections Commissioner John Q. Hamm acknowledged that there’d been some “involuntary movement and some agonal breathing” but claimed Smith had caused his own torment by holding his breath. “This was expected,” Hamm explained. However, it wasn’t what Alabama told the Supreme Court to expect. In its filings, Alabama had promised “unconsciousness in seconds [ [link removed] ].” Smith’s horrific experience proved that as an execution method, nitrogen gassing was not all it was cracked up to be.
Clearly Unconstitutional
Many of the death penalty’s worst problems converged in Smith’s case, making it an unprecedented new low in the history of criminal sentencing. Botched executions are themselves nothing new. In fact, they’ve always been a foreseen, if unfortunate, part of capital punishment. There have been five lethal injection survivors since 2009, including Doyle Hamm and Kenneth Smith.
“Re-executing” death penalty survivors didn’t begin with Smith, either. On May 3, 1946, Willie Francis screamed from underneath his hood, “Take this off! Let me breathe!” after he survived a sit-down with Louisiana’s electric chair—which was dubbed “Gruesome Gertie,” possibly due to the negligence of drunken executioners. A year later, Francis died sitting in that same chair [ [link removed] ].
The executions of William Kemmler, Gee Jon and Charles Brooks Jr. show that experimental executions that carry the false promise of an “instantaneous ... painless death”—to use the Supreme Court’s formulation [ [link removed] ] of the perfect execution—didn’t start with Smith, either.
However, Kenny Smith is the only prisoner to have suffered all of the above: He survived a botched execution and was re-executed using a novel method. Smith’s case shows that the rule from Glossip v. Gross—because the death penalty is constitutional, there must be a constitutional way to carry it out—has it precisely backwards. Because there’s no constitutional way to carry it out, the death penalty must be unconstitutional.
And because reason and dignity can’t be reconciled with vengeance, it always will be. It’s time to admit defeat, abolish the death penalty, accept life imprisonment as a tough-enough sentence and move on.

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