In our federal system, states often look to the experiences of others when adopting new policies. Imitation can result in success or failure. Political scientist David Schultz argues that states frequently borrow from others as a shortcut, leading to ineffective policies. This trend is evident in the realm of death penalty methods, where states tend to follow one another.
History shows that when one state adopts a new execution method, others likely follow suit. Louisiana plans to replicate Alabama’s use of nitrogen hypoxia, although Alabama has not perfected it. Courts should block such practices until proven effective.
The pattern of imitation in execution technologies has historical precedence. New York introduced the electric chair in 1888, seen as an advancement. Despite a gruesome failure in 1890, other states adopted it, and electrocution became prevalent.
Similarly, lethal injection spread after Oklahoma’s authorization in 1977, with Texas executing the first individual this way. Soon, many states adopted it.
The latest method, nitrogen hypoxia, was first accepted in Oklahoma in 2015. It became legal in Alabama, Arkansas, Louisiana, and Mississippi. Alabama conducted the first nitrogen hypoxia execution in January 2024, resulting in visible distress for Kenneth Smith, as reported by the AP.
Louisiana then adopted this method, intending to execute Todd Wessinger, accused of 1995 killings. Wessinger’s lawsuit claims nitrogen hypoxia poses significant harm and pain, likening execution to suffocation before consciousness loss.
The suit highlights flawed procedures in Alabama’s executions, prompting Wessinger to cite the Eleventh Circuit Court of Appeals finding that Alabama’s protocol poses substantial harm risks.
Lawsuits and court decisions should compel Louisiana to reconsider its imitation of Alabama. Schultz critiqued states as ‘factories of replication’, often repeating failed policies. Wessinger deserves protection from such failures.
— Austin Sarat, Professor of Jurisprudence and Political Science at Amherst College.
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