Imitation in Execution Methods: A Critical Analysis

In federal systems, states often replicate successful initiatives from others. This practice, however, carries significant uncertainty. Political scientist David Schultz cautions that while some borrowed policies succeed, many fail, serving merely as shortcuts rather than effective solutions. States risk unfounded imitation, especially in areas like the death penalty.

Historically, states adopting new execution methods lead to others following suit. Louisiana’s interest in Alabama’s use of nitrogen hypoxia exemplifies this trend, despite Alabama’s struggles with the method. Courts should pause and ensure the method’s reliability before states proceed.

The pattern of imitation is not new. For instance, New York introduced the electric chair in 1888, hailed as a mark of progress in executions. Yet, when first used in 1890, it led to a brutal death for William Kemmler. Despite this, other states quickly adopted the chair. Between 1897 and 1908, Ohio, Massachusetts, New Jersey, and Virginia replaced hanging with electrocution. Electrocution soon became the U.S. standard.

Lethal injection followed a similar path. Oklahoma authorized it in 1977, and Texas first implemented it in 1982. Other states soon adopted lethal injection, making it the new norm.

The latest execution method, nitrogen hypoxia, first appeared in Oklahoma in 2015 and is now legal in several states including Alabama, Louisiana, and Mississippi. Alabama conducted America’s first nitrogen hypoxia execution in early 2024, but it was problematic. Kenneth Smith, the executed man, experienced severe physical distress.

Nevertheless, Louisiana embraced Alabama’s method, planning to use it on Todd Wessinger, convicted of a double murder in 1995. He argues that nitrogen hypoxia involves severe pain and air hunger before unconsciousness occurs. Post-authorization, Louisiana mimicked Alabama’s protocol without adjustments.

Wessinger’s lawsuit highlights systemic issues in Alabama’s use of nitrogen hypoxia, backed by the Eleventh Circuit Court of Appeals’ recognition of its harm risk. This context should prompt the Federal District Court for the Middle District of Louisiana to halt the method’s adoption without due verification.

Schultz critiques the idea of states as public policy innovators, asserting they often replicate failed approaches instead. Wessinger should not become another victim of such policy missteps.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.