Death penalty methods drawing challenges as executions decline

(NewsNation) — A shortage of lethal injection drugs and controversial executions are fueling debates surrounding the methods and justification of capital punishment.

South Carolina’s use of the death penalty is the latest example of evolving national debate over the constitutionality, humanity and efficacy of capital punishment.

Last week, the South Carolina Supreme Court heard oral arguments in a case challenging two of the state’s execution methods. A group of death row prisoners argued that electrocution and firing squad were unconstitutional.

A South Carolina court previously issued an injunction against those methods. The higher court hasn’t yet issued a decision.

The recent execution of Alabama death-row inmate Kenneth Smith also launched debate after two failed lethal injection attempts led officials to execute Smith via nitrogen gas.

The arguments come as public opinions about the death penalty are slowly shifting, earmarked by the United States’ ninth consecutive year with fewer than 30 executions nationwide.

Which states still use the death penalty?

Twenty-seven states in the U.S. have the death penalty. That includes Oklahoma, Texas and Missouri, which are responsible for the most prison executions per capita since 1976, according to the nonprofit Death Penalty Information Center.

Five states — Alabama, Florida, Missouri, Oklahoma and Texas — carried out executions last year.

As of December, the majority of states have either abolished capital punishment or executions have been temporarily halted through executive action. Arizona, California, Ohio, Oregon, Pennsylvania and Tennessee each have a gubernatorial hold on executions.

Illinois, in 2000, became the first state in the U.S. to declare a moratorium on executions, fueled by exonerations and concerns about wrongful executions.

The public’s opinion is shifting, too. Half of Americans say the death penalty is administered unfairly, according to the findings of a November Gallup poll. That’s compared to 47% who said the practices are fair. Still, a plurality of voters say the death penalty isn’t used enough.

Lethal injection shortage, challenges to alternative methods

A shortage of lethal injection drugs hit the U.S. about a decade ago. Pharmaceutical companies overseas and within the U.S. began refusing to sell the drug for execution use. Around that time, the U.K. also banned exports of the drug for the same purpose.

“I think the problem with lethal injection drugs spurred some states to really start questioning, ‘What are we doing here?'” said Deborah Denno, a law professor at Fordham Law School.

After Alabama failed twice to execute death row inmate Kenneth Smith, the state opted instead to use nitrogen gas. The measure sparked nationwide debate, and Smith ultimately died by nitrogen hypoxia on January 25.

“This is what hit South Carolina, this difficulty accessing drugs, and also now this constitutional challenge to electrocution and the firing squad,” Denno said. “We’ve seen, particularly in the last 10 or 15 years, a real scramble among states in a way we hadn’t really that much before that.”

Lethal injection is the most common method of execution, according to the Death Penalty Information Center. Some states allow alternative methods, however, including electrocution, gas chambers, hanging and firing squad.

Increasingly, use of the death penalty is being challenged as a violation of the Eight Amendment. Proponents of that argument say it’s the government’s job to uphold those rights even in the face of public outrage at a criminal offense.

“Our constitution is supposed to control our really primitive, visceral emotions and instincts that we would have toward someone who inflicted such violence on our loved one,” Denno said. “The government is supposed to control our basic instincts.”

What do proponents of the death penalty say?

Arguments in favor of the death penalty are largely based on perceptions surrounding moral justification, crime deterrence and safeguards to protect against executions of innocent people.

A 2021 Pew Research Center survey found that about 64% of Americans say the death penalty is morally justified for people convicted of murder.

Along those lines, proponents of the death penalty say it works as a deterrent to serious crime. Texas Attorney General Ken Paxton made that argument in a 2022 brief opposing challenges to Georgia’s use of the death penalty.

Paxton claimed the death penalty serves to “punish society’s vilest offenders, provide the victims of
those crimes with closure, and deter” repeat offenses.

To some, the death penalty is seen as the closest alternative to justice for certain violent crimes.

“However unpopular capital punishment may be in particular circles, many States have decided that some
crimes are so heinous that only the forfeiture of the offender’s life can satisfy what justice requires,” Paxton wrote.

Oklahoma State Attorney General Gentner Drummond made similar comments following the state’s January 12, 2023, execution of convicted murderer Scott Eizember.

“I understand that nothing can ever lessen the pain of a loved one’s death, but I pray that today brings closure and some measure of peace,” Drummond said in an official statement.

A family member of the victims in the case, 76-year-old A.J. Cantrell and 70-year-old Patsy Cantrell, spoke after the execution.

“I don’t know if today was justice,” the family member said, according to local NPR reporting at the time. “I don’t know if today was closure. I’m not sure it was ever about any of those things for us. Maybe today was a bookend for another day that happened almost 20 years ago, with a whole lot of stories in between. I do know that I’m glad that our enemy is dead.”

Despite changing public opinion around the death penalty, future developments are likely to continue at a slower pace, Denno said.

“(This debate) has been going on for a really long time,” she said. “I don’t foresee a turning point where a light bulb goes off in the United States, and people say, ‘Wow, we really shouldn’t have been doing this.'”