State Constitutional Limits on Nitrogen Hypoxia Executions

The title of this post is the title of this new article authored by William W. Berry III now available via SSRN.  Here is its abstract:

In January 2024, the state of Alabama executed Kenneth Smith with nitrogen gas.  One might think that the Eighth Amendment, which bars cruel and unusual punishments, might protect inmates against such draconian and experimental forms of execution.  But the Supreme Court’s cases have foreclosed meaningful challenges to methods of execution.

States, however, have their own constitutions with Eighth Amendment analogues.  These state constitutional punishment clauses include different formulations of the bar against cruel and unusual punishments.  In theory, they offer broader protections than the Eighth Amendment.  Some are linguistically different and some have unique histories, and as such, counsel against a lock-stepping approach that simply adopts the federal standard.

While under-litigated, this area holds promise for inmates as a basis for challenging nitrogen gas executions.  To that end, this Article explores potential limits that state constitutions can place on methods of execution.  Specifically, it makes the case that nitrogen gas executions are unconstitutional under a number of state constitution punishment clauses.

Part II of the Article provides a brief overview of American execution methods and the Court’s application of the Eighth Amend-ment to those methods.  In Part III, the Article surveys the state punishment clauses and the few cases that have raised methods challenges under state constitutions.  In Part IV, the Article advances a theoretical framework for applying state punishment clauses to methods of execution.  And Part V uses that framework to show why state punishment clauses bar nitrogen gas executions.