By Jackson VanderLey 
Photo Credit: Texas Department of Criminal Justice
Nearly half a century ago in 1976, the Supreme Court ruled in Gregg v. Georgia that the state’s prospective imposition of the death penalty in the case at hand violated neither the Eighth nor Fourteenth Amendment. The ruling overturned the Court’s previous holding in Furman v. Georgia, which had found that Georgia’s imposition of the death sentence was unconstitutional on the grounds it was reached “in an arbitrary and capricious manner.” When the court decided Furman, the sentences of upwards of 600 inmates on death row were commuted, effectively placing a nationwide moratorium on capital punishment.
48 years after Gregg, on the 20th of March, 2024, Willie James Pye was administered a lethal dose of pentobarbital. Pye’s execution marked the first carried out by Georgia since 2020, and the third out of 25 overall nationwide executions in the year 2024. These 25 executions in 2024 marked a marginal increase from 24 in 2023, and an uptick from 18 in 2022 and 11 in 2021 (8 excluding federal executions).
Besides being the first execution after a four-year hiatus, which itself was largely a by-product of pandemic-related postponements, Pye’s execution was another whose procedure was withheld from public view by state statutes. The statutes prohibited the disclosure of Georgia’s source for the drugs utilized in lethal injections which is the only legal method of execution in the state. These statutes constrain the extent to which the execution itself, and the preparation leading up to it, can be observed by media witnesses. Secrecy about executions drew attention on March 8th, just 12 days before Pye’s death, when the American Civil Liberties Union (ACLU) filed a lawsuit on behalf of The Appeal, a nonprofit news outfit, “challenging the arbitrary restrictions that the State of Georgia places on media witnesses during executions.” The motion described how the statute “limited auditory access to the execution process” and “restrict[ed] visual access at various points during the process.”
Despite the suit’s failure in both the state’s lower courts and Supreme Court, the limited access provided to the Associated Press (AP) was enough to witness Pye “exhaling rapid bursts of air about a half-dozen times, causing his cheeks to expand and his lips to quiver each time” during the injection of the barbiturate. These are symptoms consistent with those caused by pulmonary edema which is experienced when an excess of fluid enters the lungs. Pulmonary edema has been linked to pentobarbital, among other drugs commonly utilized for lethal injections such as midazolam. Opponents of the death penalty have raised concerns about both Pye’s reaction, and the reaction observed during the execution of Kenneth Eugene Smith.
Smith was not only the first inmate executed in the U.S. (Alabama) in 2024 but also the first individual on Earth to have been put to death by suffocation with the use of nitrogen hypoxia. Smith’s execution was the first instance since Charles Brooks Jr. was given a lethal dose of sodium pentathol in 1982 that a novel method of execution was used in the U.S.
AP reported that Smith “appeared to shake and writhe on the gurney, sometimes pulling against the restraints,” which was then “followed by several minutes of heavy breathing, until breathing was no longer perceptible” during his execution. AP’s account contradicts a statement issued by Alabama’s Attorney General, Steve Marshall, shortly after Smith’s death. Marshall claimed suffocation by nitrogen hypoxia had been proven to be “an effective and humane method of execution.”
So far, four states – Oklahoma, Mississippi, Alabama, and Louisiana – have recognized suffocation by way of nitrogen gas as a legal method of execution. Bills similar to the aforementioned statutes have been proposed, although not yet passed, in several other state legislatures, including Ohio and Nebraska.
This alternative method of execution, as well as others, such as firing squads, have been proliferating throughout the 23 states in which the death penalty has been neither abolished nor paused. The introduction of alternative methods allows these states to circumvent the mounting challenges related to procuring the drugs used for lethal injections and minimize the possibility for an execution to be botched, as Smith’s was previously; in 2022, corrections officers responsible for administering the lethal injection to kill Smith were unable to find a suitable vein to do so before Smith’s death warrant expired.
Those critical of the expanding adoption of nitrogen hypoxia cite the relative scarcity of information regarding how the nitrogen gas renders a person unconscious which they claim detracts from its efficacy. They also question the extent to which it may cause a “superaddition of terror, pain, or disgrace,” which is the judicial standard established in Bucklew v. Precythe to determine whether a punishment is unconstitutionally “cruel and unusual.” In her dissent from a six-to-three ruling in which both Smith’s application for a stay of execution and a petition for a writ of certiorari was denied, Justice Sotomayor decried the usage of the then-untested method, concluding, “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before.”
In the ensuing months, two others, Alan Eugene Miller and Carey Dale Grayson, were executed using nitrogen hypoxia. Grayson was the last of six inmates executed by Alabama, which executed the highest number of death row inmates out of the nine states that carried out at least one execution in 2024. Of those nine, half involved the usage of nitrogen hypoxia. Miller, like Smith, had his first execution botched. The second attempt, which was successful, took place in a week unusually dense with executions. Four other executions were scheduled and carried out in the same seven-day span.
These five executions were spread out over five different states. Alabama, Missouri, Texas, Oklahoma, and South Carolina all executed an inmate between the 20th and 26th of September. The execution of Freddie Owens, also known as “Khalil Divine Black Sun Allah,” marked South Carolina’s first execution in 13 years. The most notable of these five executions was Missouri’s execution of Marcellus Williams, also known as “Khaliifah,” whose case garnered widespread attention on social media websites such as X and Instagram.
Williams’ case was subjected to particular scrutiny for numerous reasons. Among these were claims leveled by his attorneys that the racial makeup of the jury by whom he was sentenced was disproportionately white. Another aspect of the case which made it of particular interest was a plea agreement that would have commuted Williams’ sentence to life without parole which was struck down by the Missouri Supreme Court. The court’s ruling was reached despite indication that after another round of DNA testing had been ordered, vital evidence in the case, such as the murder weapon, had been mishandled by the prosecuting attorneys and consequently made the evidence inadmissible in court. Until his execution, Williams also continued to insist he was innocent.
Numerous legal and civil rights organizations joined in condemning the execution. Among these was the National Association for the Advancement of Colored People (NAACP), whose president, Derrick Johnson, compared it to a lynching and said then-governor Mike Parson had “decided to take the life of … an innocent man” by choosing not to exercise his clemency powers to place a stay on Williams’ execution.
There were two instances last year in which executive clemency was granted. One at the federal level, one at the state level. The state level action was undertaken in North Carolina, the state with the fifth-highest number of death-row inmates. In one of his last acts as governor, Roy Cooper commuted the death sentences of 15 individuals to life without parole. Likewise, shortly before his departure from office, President Joe Biden commuted 37 of the standing 40 federal death row sentences to life without parole. He also commuted the sentences of approximately 1,500 inmates who had been placed on home confinement during the COVID-19 pandemic and nearly 2,500 charged with nonviolent drug offenses. The move drew praise from various civil rights organizations, such as the ACLU, who lauded it as a “groundbreaking action.” AP reported it as the “the largest single-day act of clemency in modern history.” President Biden did however fall short of his campaign pledge to abolish the federal death penalty entirely.
Conversely, President Trump has already made good on his campaign pledge written on Truth Social. He promised “as soon as I am inaugurated, I will direct the Justice Department to vigorously pursue the death penalty.” Since taking office he has signed into effect an executive order for the stated purpose of “Restoring the Death Penalty and Protecting Public Safety.” Of the provisions therein, one prescribes for the United States Attorney General to “pursue the death penalty for all crimes of a severity demanding its use.” This policy is consistent with President Trump’s first term, which saw the highest number of federal inmates(13) put to death during a President’s tenure in the 21st century.
Given these recent developments and President Trump’s track record, it remains to be seen whether or not 2025 will follow the trend established over the first half of the 2020s by giving way to a further uptick in executions.