Tennessee executed man who killed girlfriend and two daughters

 The 28th Execution of 2025

A man convicted of killing his girlfriend and her two young daughters in the 1980s said he was “hurting so bad” while he was given a lethal injection on August 5, 2025 in Tennessee, where authorities had refused to deactivate his implanted defibrillator despite claims it might cause unnecessary, painful shocks as the drugs were administered, reported The Associated Press.

Black’s attorney said they will review data kept by the device as part of an autopsy.

Black died at 10:43 a.m., prison officials said. It was about 10 minutes after the execution started and Black talked about being in pain.

Asked for any last words, he replied, “No sir.”

Black looked around the room as the execution started, lifting his head off the gurney multiple times, and could be heard sighing and breathing heavily. All seven media witnesses to the execution agreed he appeared to be in discomfort. Throughout the execution, a spiritual adviser prayed and sang over Black, at one point touching his face.

“Oh, it’s hurting so bad,” Black said, as he lay with his hands and chest restrained to the gurney, a sheet covering up past his lower half, and an IV line in his arm.

“I’m so sorry. Just listen to my voice,” the adviser responded.

Black was executed after a back-and-forth in court over whether officials would need to turn off his implantable cardioverter-defibrillator, or ICD. Black, 69, was in a wheelchair, suffering from dementia, brain damage, kidney failure, congestive heart failure and other conditions, his attorneys have said.

The nonprofit Death Penalty Information Center said it’s unaware of any other cases with similar claims to Black’s about ICDs or pacemakers. Black’s attorneys said they haven’t found a comparable case, either.

Black killed his girlfriend and her 2 daughters

Black was convicted in the 1988 shooting deaths of his girlfriend Angela Clay, 29, and her two daughters, Latoya Clay, 9, and Lakeisha Clay, 6. Prosecutors said he was in a jealous rage when he shot the three at their home. At the time, Black was on work-release while serving time for shooting Clay’s estranged husband.

Clay’s sister said Black will now face a higher power.

“His family is now going through the same thing we went through 37 years ago. I can’t say I’m sorry because we never got an apology,” Linette Bell, Angela Clay’s sister, said in a statement read by a victim’s advocate after the execution.

Black’s lawyer said the execution was shameful.

“Today, the state of Tennessee killed a gentle, kind, fragile, intellectually disabled man in a violation of the laws of our country simply because they could,” attorney Kelley Henry said.

The legal fight over Black’s defibrillator

In mid-July, a trial court judge agreed with Black’s attorneys that officials must have the defibrillator deactivated to avert the risk that it could cause unnecessary pain and prolong the execution. But Tennessee’s Supreme Court overturned that decision Thursday, saying the other judge lacked authority to order the change.

The state disputed that the lethal injection would cause Black’s defibrillator to shock him and said he wouldn’t feel them regardless.

Henry said Black’s defense team will carefully review autopsy results, EKG data from Black and information from the defibrillator to determine what exactly happened during the execution. The lethal injection protocol is still being challenged in court.

She said she was especially concerned about his head movement and complaints of pain because the massive dose of pentobarbital used to kill inmates is supposed to rapidly leave them unconscious.

“The fact that he was able to raise his head several times and express pain tells you that the pentobarbital was not acting the way the state’s experts claim it acts,” Henry said.

Prison officials did not comment on witnesses and Black’s attorney saying he appeared conscious or his complaints of pain.

It was Tennessee’s second execution since May, after a pause for five years, first because of COVID-19 and then because of missteps by state corrections officials.

Twenty-eight men have died by court-ordered execution so far this year in the U.S., and nine other people are scheduled to be put to death in seven states during the remainder of 2025. The number of executions this year exceeds the 25 carried out last year and in 2018. It is the highest total since 2015, when 28 people were put to death.

Black’s condition

Black had an implantable cardioverter-defibrillator, which is a small, battery-powered electronic device that is surgically implanted in the chest. It served as a pacemaker and an emergency defibrillator. Black’s attorneys have said a doctor can send it a deactivation command without surgery.

The legal case also spurred a reminder that most medical professionals consider participation in executions a violation of health care ethics.

Intellectual disability claim

In recent years, Black’s legal team has unsuccessfully tried to get a new hearing about an intellectual disability they say he’s exhibited since childhood. People with intellectual disabilities are constitutionally barred from execution. 

His attorneys have said that if they had delayed a prior attempt to seek his intellectual disability claim, he would have been spared under a 2021 state law. That is because the 2021 law denies a hearing to people on death row who have already filed a similar request and a court has ruled on it “on the merits.”

A judge denied Nashville District Attorney Glenn Funk’s attempt to get Black a new hearing. Funk focused on input from an expert for the state in 2004 who determined back then that Black didn’t meet the criteria for what was then called “mental retardation.” But she concluded that Black met the new law’s criteria for a diagnosis of intellectual disability.

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Things can always be worse: Iranian authorities severed the fingers of three men convicted of theft

Iranian authorities severed the fingers of three men convicted of theft, said Human Rights Watch (HRW) as reported by Jurist-News. HRW Iran researcher Bahar Saba denounced the punishment, stating, “Amputation is torture, plain and simple. Yet Iran persists in carrying out cruel and inhuman punishments that fly in the face of its human rights obligations.”

Mehdi Shahivand, Mehdi Sharafian and Hadi Rostami were detained in August 2017 following accusations that they had burglarized several houses and robbed safes. The court sentenced all of the individuals to amputations of four fingers of their right hands, leaving only the palm and the thumb. In April of 2022, HRW stated that there was evidence that the trials were unjust:

Evidence strongly suggests that the trial was grossly unfair. According to case information review by Human Rights Watch and accounts of informed sources, the men did not have access to lawyers during the investigation phase and only saw a lawyer twice–once when they signed the retention documents and once during the court hearings. The men have also said that the authorities tortured and ill-treated them while in the custody of the police’s Investigation Unit (Agahi) in Urmia… beating and flogging them and suspending them from their hands and wrists.

The UN Office of the High Commissioner in June 2022 called on authorities to cancel the planned amputations of these three men, along with five others. The UN reported that, per Iranian civil society organizations, at least 237 people who were “mostly from poorer segments of society” were sentenced to amputations between January 2000 and September 2020, with sentences being carried out in at least 129 cases.

Hand amputation is grounded in Article 278 of the Islamic Penal Code, which permits this type of punishment for “Hudud crimes” such as theft, adultery, slander and drinking alcohol. Iran’s Human Rights Monitor detailed some of the history of amputation in Iran, emphasizing that despite “widespread international condemnation, Iranian authorities have continued to enforce this brutal punishment beyond 2020.” Critics maintain that this penalty is a stark violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR). While Iran has ratified the ICCPR, it has not signed or ratified the CAT. The ICCPR explicitly mandates that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Iran has recently been subjected to strict international scrutiny due to record executions and other purported violations of international law.

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Oklahoma enacts unconstitutional law imposing death penalty for sex offense against a child

People convicted of sex offenses against children can be sentenced to death or life without parole on their first offense under a new law signed by Gov. Kevin Stitt, according to the Oklahoma Voice.  The U.S. Supreme Court has unequivocally determined that the death penalty may apply only in cases where the life of the victim has been taken. In Kennedy v. Louisiana, the Court ruled that the Eighth Amendment prohibits the death penalty for the rape of a child when the victim did not die and the crime was not intended to cause death. 

Senate Bill 599, authored by Sen. Warren Hamilton, R-McCurtain, allows prosecutors to pursue the death penalty for the rape of a child under 14 for first-time offenders. Under existing law, the offender must have been previously convicted of the sex crime to be eligible for the death penalty. 

For lewd molestation against a child under the age of 12, an offender can receive the death penalty, a sentence of at least 10 years or life or life without parole. The law currently requires a sentence of at least 25 years of incarceration.  

“Oklahoma is sending a clear and unequivocal message, crimes against our most vulnerable citizens, our children, will be met with the harshest consequences,” Hamilton said in a statement.

The Oklahoma District Attorney’s Council was involved in the crafting of this legislation and made recommendations to shape its language, he said. Prosecutors will continue to have discretion about which sentence to seek.

Hamilton said this law makes Oklahoma one of the states with the toughest penalties for child sex offenses.

“I deeply appreciate Gov. Stitt for signing this crucial legislation,” he said. “His action reaffirms our state’s commitment to justice and to protecting children from predators who, frankly, don’t deserve a second chance.”

The legislation passed through the Legislature with the only “no” votes coming from some House and Senate Democrats. 

The new law takes effect Nov. 1.

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David French: 'Due process doesn’t just protect a person’s liberty and dignity--It’s a humble acknowledgment of our own limitations'

From David French of The New York Times:

Last month a federal court of appeals judge made a startling assertion. “Nazis,” she said, “got better treatment under the Alien Enemies Act” than people suspected of being members of a Venezuelan gang.

You might think those words, spoken by Judge Patricia Millett, who sits on the U.S. Court of Appeals for the D.C. Circuit, are hyperbolic, an example of shamefully politicized language coming from a partisan judge. But they are not.

At the height of World War II, when the United States was in greater mortal danger than at any other time since the Civil War, America respected the due process rights of people suspected of being Nazis more than it has recently respected the rights of people accused of being members of the Venezuelan gang Tren de Aragua — an extremely violent criminal group that nonetheless poses no threat to American national security remotely comparable to the threat posed by Nazi Germany.

President Franklin D. Roosevelt invoked the Alien Enemies Act in the hours after the Japanese attacked Pearl Harbor on Dec. 7, 1941, and by Dec. 20, he’d established Alien Enemy Boards in 22 districts across the country that were designed to determine whether aliens in U.S. custody should be released, paroled or interned during wartime.

Nazi saboteurs who were captured attempting to infiltrate the United States in 1942 to carry out attacks were given a trial by military commission before the United States punished them for violating the laws of war.

Whereas those accused of being Nazis had an opportunity to plead their case before a board, those accused of being members of Tren de Aragua were given no opportunity to contest their status as enemy aliens before they were rounded up and shipped to an El Salvadoran prison, where we saw images of them walking in a line, heads shaved.

Oh, and a number of those who were rounded up don’t seem to be members of the gang at all. A Reuters review of 50 of the deportees found that at least 27 had pending asylum cases in the United States. At least one of those shipped to El Salvador was legally present in this country, and that is just the one that the U.S. government has admitted was swept up in an “administrative error.”

All of the deportees are now suffering in prison conditions that, if they were found stateside, would violate the Eighth Amendment of the Constitution.

How did the administration respond after this judicial rebuke, much less to its own malicious incompetence? By attacking the very idea that people suspected of being gang members should receive due process.

Stephen Miller, one of the president’s most influential advisers, posted on X, “Dear marxist judges, If an illegal alien criminal breaks into our country the only ‘process’ he is entitled to is deportation.” In a Fox News interview, Vice President JD Vance said, “We do not ask permission from far-left Democrats before we deport illegal immigrants. We do the American people’s business.”

These assertions, of course, raise the question: How do they know if someone is an “illegal alien” absent due process?

The defense of civil liberties is hard even under the best of circumstances. Thousands of years of human history tell us that we are not naturally inclined to protect the rights of our opponents, much less the rights of people we believe to be violent and dangerous.

That’s why the defense of the Bill of Rights requires both practical and moral arguments. The practical defense is often the most effective: Protect the rights of others that you would like to exercise yourself. After all, one day you might not be in control.

This argument often works most effectively in the defense of free speech. We’re accustomed to changes in political control. We know (or should know) that every power given to Republicans will accrue to Democrats when they take over, and vice versa.

Due process is different. No American right requires an underlying moral commitment to justice more than the right to due process. Very few American voters actually fear a knock on their door in the middle of the night. I’ve never met an American, outside of those from the most vulnerable and marginalized communities, who fears random arrest and indefinite detention.

For most Americans, “Defend due process or you’re next” is not a credible argument.

Instead, the best arguments for due process transcend self-interest. They’re aimed straight at the inherent dignity and worth of every human being. They appeal directly to the idea that each of us is made in the image of God — that each of us is endowed with unalienable rights.

Let me share a story about my service in Iraq I first told many years ago, which will illustrate my point.

When I read Judge Millett’s words about Nazis, I immediately thought, “I can go further than that.” We gave more due process rights to people accused of being members of Al Qaeda in Iraq than we’re giving to people suspected of being gang members at home.

I’m not here to defend all of our conduct during Operation Iraqi Freedom. The atrocities in Abu Ghraib were inexcusable. There were many other incidents of abuse. But in my unit when I deployed during the surge, more than three years after the Abu Ghraib scandal broke, our instructions were clear: Detainees were to be treated with dignity, and that meant due process.

In fact, the first words my regimental commander said to me were blunt and direct: “Captain French, you have one job. Make sure we don’t screw up with detainees,” only he used a word more graphic than “screw.” He was holding me, he said, personally responsible for the treatment of prisoners in our control.

One night in January 2008, that commitment was put to the test. We were in the middle of Operation Raider Harvest, an attack on a Qaeda stronghold in Diyala Province in eastern Iraq. A neighboring unit had just lost six soldiers to an explosion in a booby-trapped house. We were all on edge.

We had already captured a number of people thought to be terrorists, and virtually all of the detentions were easily justified. Either they surrendered on the battlefield or the intelligence justifying their capture was solid. But this particular night the story was different.

Our troopers brought in a man they had hauled out of a minivan minutes before. His vehicle matched the description of a vehicle on our BOLO (be on the lookout) list, and he had multiple ID cards. But I took a close look at the evidence, and I knew immediately that we should let him go.

I wasn’t the only one. A young sergeant came up to me and said, “Sir, I don’t think he’s bad.”

We were looking for a silver Honda van. The detainee was driving a Hyundai. The multiple IDs weren’t of multiple identities but rather different forms of the same identification. He had a national ID card, a driver’s license and an expired driver’s license. There was no gunpowder residue on his hands. He had no weapons.

My squadron commander agreed with the sergeant and me. “Let him go,” he ordered. And we did. But we did better than that; we gave him his van back and gave him a tank escort home.

As he rolled out, though, a soldier turned to me and voiced our shared fear. “It sure would suck if he actually turned out to be bad and we let him go.” Yes, I thought, it would. It could be worse than that. One of the men escorting him home could die at his hands.

“We’re not God,” I responded. “I can’t look into his heart and know the truth, so we have to go by evidence. The evidence makes the decision for us. Was there enough evidence to hold him?”

“No, sir,” he replied.

Due process doesn’t just protect a person’s liberty and dignity. It’s a humble acknowledgment of our own limitations. As I told the soldier who questioned me, “We can’t trust any person’s judgment completely, no matter how good their instincts or how good their intentions.”

“Makes sense,” he responded, and that was that. The conversation was easy not because of the difference in our rank but because of our common moral commitments.

If you read the Constitution closely, you’ll note that our national commitment to due process — so vital that it’s mentioned twice, in the Fifth and 14th Amendments — applies not only to “citizens” but to “persons.” That’s because each person is endowed with unalienable rights, not just each citizen. It’s our status as human beings that grants us this dignity.

I think often about that night and that conversation. I wonder how long we can maintain a shared ethos when the nation’s dominant political movement, now in control of the federal government, is attacking our core values.

The Trump administration is urging Americans to give in to their basest desires. It scorns the moral arguments that built the Constitution. If its assault on the American system is allowed to continue, that system will be destroyed — and once destroyed, it will not be easy to rebuild.

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'Déjà vu all over again' Tennessee death row inmates challenge lethal injection

Nine Tennessee death row inmates are suing the state over its push for a new round of lethal injections after an execution was abruptly called off in 2022 and a follow-up investigation found scores of missteps in several executions, reported The Associated Press.

More than a decade ago, Richard Glossip, and several other death row inmates challenged lethal injection is Tennessee.  The U.S. Supreme Court denied his their claim of cruel and unusual punishment, Glossip v. Gross, 576 US 863 (2015). On a side note, Glossip made his way back to the Supreme Court this year, and the high court granted him a new trial and a chance to be exonerated, Glossip v. Oklahoma, 22-7466.

The lawsuit was filed March 14 in state court, nearly three months after officials announced a new lethal injection protocol using the single drug pentobarbital. The Tennessee Supreme Court recently agreed to schedule executions for four inmates with the first set for May.

The lawsuit argues that pain and suffering from executions using pentobarbital violate the Eighth Amendment’s ban on cruel and unusual punishment. They also contend that the Tennessee Department of Correction has failed to make changes to the execution process as the governor and an independent investigator recommended — or if it has, it has not told the public. Rather, the lawsuit claims, department officials wrote a new protocol with few specifics, making it harder to hold them accountable.

The attorney general’s office said it is reviewing the lawsuit. A Correction spokesperson declined to comment on it.

Tennessee’s lethal injection problem

Tennessee executions have been paused since 2022, when the state admitted it had not been following its most recent 2018 lethal injection protocol. Among other things, the Correction Department was not consistently testing the execution drugs for potency and purity. Tennessee’s last execution was by electrocution in 2020.

An independent review of Tennessee’s lethal injection practice, which GOP Gov. Bill Lee ordered while pausing executions, found none of the drugs prepared for the seven inmates executed since 2018 had been fully tested — including the canceled 2022 execution.

Later, the state attorney general’s office conceded in court that two of the people most responsible for overseeing Tennessee’s lethal injection drugs “incorrectly testified” under oath that officials were testing the chemicals as required. Two department officials with execution-related duties were fired.

The new lawsuit says the Department of Correction has said nothing publicly about whether it has fixed some issues raised, despite telling a federal judge it would complete recommendations by the governor and the independent investigator, former U.S. Attorney Ed Stanton.

For instance, the governor directed the department to review and overhaul its execution training procedures. Stanton, meanwhile, recommended hiring someone full-time or as a consultant with a pharmaceutical background to offer guidance on the lethal injection protocol. Stanton also suggested hiring a full-time specialist for chemical testing standards, and storage of testing results and the chemicals themselves.

From three drugs to one

Tennessee is moving from a three-drug series to just one, the barbiturate pentobarbital. Fifteen states and the federal government have used pentobarbital in executions, and five others plan to, according to the nonprofit Death Penalty Information Center. Previously, Tennessee struggled to obtain the drug because pharmaceutical companies were hesitant to fuel executions. The state has not said publicly how it plans to obtain pentobarbital.

In prior lawsuits, attorneys for the Tennessee prisoners had argued pentobarbital was preferable to the three drugs — midazolam, vecuronium bromide and potassium chloride.

That’s because U.S. Supreme Court precedent requires inmates challenging an execution method to detail a “known and available alternative,” even if they also consider the alternative unconstitutional. They’ve named other alternatives, including the firing squad.

In the latest lawsuit, the attorneys argue that death by pentobarbital could feel like drowning or suffocation as the lungs fill with liquid.

The lawyers cite research released after their previous lawsuits. And they noted that the Department of Justice under then President Joe Biden raised concerns about pentobarbital’s potential for causing “unnecessary pain and suffering” during executions.

The U.S. Supreme Court has never struck down an execution method as cruel and unusual punishment under the Eighth Amendment.

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Creators: Trump's Death Penalty Order a Challenge to the 8th Amendment

Matthew T. Mangino
Creators
January 28, 2025

The first Trump administration carried out more executions than any president in at least a century. Shortly after being sworn in for a second time, President Donald Trump signed an order to expand the death penalty.

It should come as no surprise that a second Trump Department of Justice will seek capital punishment more often under his administration. That would be a clear break from the prior administration.

Former President Joe Biden declared a moratorium on executions when he took office. He campaigned in 2020 on ending the federal death penalty. Legislation proposing to end state-sponsored death failed to gain any traction in Congress during the Biden administration.

During his final days in office, Biden thwarted Trump's plan to resume executions by commuting the death sentences of 37 of the 40 men on federal death row.

Biden knew what was coming. Under the first Trump administration, the federal government carried out 13 executions in a little more than six months following a 17-year pause.

The federal executions of 2020 included: the first federal execution in 57 years for a crime committed in a state that had abolished the death penalty; executions carried out against the wishes of the victims' families; and the first lame-duck executions in more than a century.

After losing his bid for reelection, Trump oversaw six executions during the presidential transition period, more than any other administration in the history of the United States. Prior to 2020, the federal government carried out only three executions in the modern era of the death penalty. This time around, Trump will have only three inmates to choose from on death row, and it is unlikely that any federal death sentence imposed during his tenure will be eligible for execution before he leaves office.

In the past, the U.S. attorney general had wide latitude in deciding whether to seek the death penalty in individual cases. Trump's order instructs the office to pursue federal jurisdiction and seek the death penalty, "regardless of other factors," for people who murder a law enforcement officer or who are in the country illegally and commit a capital crime.

More troubling is the portion of Trump's order that addresses the 37 men whose death sentences were commuted to life without parole. The order provides, "[T]he Attorney General shall take all lawful and appropriate action to ensure that these offenders [commuted persons] are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose."

Is Trump suggesting torture or something akin to it — like feeding inmates bread and water and locking them in tiny, unsanitary cells without interaction with others; no exercise; no contact with the outside world?

Miriam Gohara, a clinical professor of law at Yale Law School, told The Marshall Project the president's order raises legal concerns. "The punishment is being incarcerated. The punishment is not the condition of confinement. That's not legal," she said.

"The Eighth Amendment prohibits cruel and unusual punishment," Robin Maher, the executive director of the Death Penalty Information Center, told NPR. "There are limitations, both under the Constitution and international standards, that prohibit keeping people in torturous conditions."

"Are they going to intentionally put some sort of atmosphere in place that is intolerable?" added Gohara. "I can't imagine that is actually something that they could carry out. On the other hand, I don't want to underestimate them either."

Professor Gohara is right. Don't underestimate Trump. The U.S. Constitution may not be enough to constrain the new Department of Justice. On Day 1, Trump also declared that he wants to eliminate "birthright citizenship," a sacrosanct constitutional right adopted more than 150 years ago and delineated in the 14th Amendment.

How about the 22nd Amendment's limitation on presidential terms? With President Trump, everything is on the table.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

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Professor files legal brief challenging lethal injection for condemned man who wants executed

Death by lethal injection looks like the condemned person just went to sleep. But looks can be deceiving, reported the AZMirror.

Anesthesiologists know that an overdose of pentobarbital, the barbiturate used for executions by lethal injection in Arizona and other states, renders the prisoner unresponsive — but not necessarily fully anesthetized — before it kills by “flash pulmonary edema.”  

The drug causes part of the heart to fail, makes the brain obstruct breathing and floods the lungs with fluid. Autopsies show that the lungs of prisoners executed with pentobarbital are two to three times heavier than normal. 

In short, the prisoner drowns in his or her own body fluids, which one expert told the federal courts in a 2019 deposition is “one of the most powerful, excruciating feelings known to man.”

Lethal injection was once thought to be the least painful, most humane form of execution. Now, experts liken it to waterboarding, a form of torture considered too cruel to use in wartime.

To be specific, eight of the 27 autopsies cited in that 2019 deposition were of men executed in Arizona. Aside from problems inserting IV catheters in some of the executions, there were no apparent signs reported of what the anesthesiologist called “outward calm, inner terror.”

Virginia law professor Corinna Barrett Lain filed an amicus curiae, or “friend of the court” brief, advocating for condemned Arizona prisoner Aaron Gunches, who doesn’t want anyone advocating for him.

Gunches is on Death Row for the 2002 murder of Ted Price, his girlfriend’s ex-husband, and he has repeatedly petitioned the courts to go forward with his execution, saying he would rather be dead than rot in prison.  

the Arizona Supreme Court is supposed to set a briefing schedule that will likely lead to a death warrant so that Gunches’ execution can go forward.  

On Dec. 30, Gunches, who is representing himself in the case, filed a handwritten motion asking the court to forgo the formality of briefing and just set an execution date to “have his Long Overdue Sentence carried out.”

“Gunches asks this court why is AG (Kris) Mayes’ motion necessary?” he wrote. “It is pointless and just more ‘foot dragging’ by the state.”  

In a response filed Monday, Mayes’ office held firm on the formality of briefing.

But Lain argues in her brief that Gunches may not know what he is in for.

“Arizona is asking for a death warrant, and Mr. Gunches apparently agrees,” she said in an interview with the Arizona Mirror. “But the interests at stake when a state kills its citizens — in your name, and mine — are larger than those of the parties. One might very well support the death penalty and oppose executions in the name of expediency that inflict a torturous death.”

Lain is a former prosecutor and a professor at the University of Richmond School of Law.  She spent seven years researching lethal injection for her book, “Secrets of the Killing State: The Untold Story of Lethal Injection,” which will be published in April.

Her amicus brief covers the pain likely inflicted by pentobarbital overdose (a subject that has not yet been litigated in Arizona), the history of troublesome and botched executions in the state and Gov. Katie Hobbs’ sudden dismissal of an independent investigation into the state’s execution processes in favor of a report the Department of Corrections, Rehabilitation & Reentry conducted on itself.

Whether Lain’s argument will sway the justices — or Gunches— remains to be seen.

Gunches is adamant that he would rather die, and he almost succeeded once. In 2022, then-Arizona Attorney General Mark Brnovich, who had already overseen the executions of three prisoners in the last year of his tenure while running for U.S. Senate, obtained a death warrant for Gunches. But he didn’t have enough time in his term for the execution to take place.

When Hobbs became governor and Mayes became attorney general in January 2023, they let the warrant run out and appointed David Duncan, a retired federal magistrate judge, to evaluate the state’s troubled lethal injection protocol.

Lain starts her brief with Mayes’ remarks at the time.

“I don’t think it’s a secret that we inherited one of the worst, most incompetent and most ill-funded Department of Corrections in the country,” as Mayes told the media. “I don’t think it takes a leap to suggest that we should understand whether they are capable of carrying out the death penalty before we do it.”

Indeed, there had been botched executions, repeated difficulties in setting IV lines, instances in which the Corrections department tried or succeeded in importing drugs illegally from other countries and failures to be transparent.

In that brave new administration, executions were put on hold, indefinitely. Or so it seemed.

But Maricopa County Attorney Rachel Mitchell intervened, asking the Arizona Supreme Court to let her carry out the death warrant, so that justice could go forward, even though the state constitution reserves that job for the AG.  Nonetheless, after two years of back and forth, the high court was willing to entertain arguments on the matter.

In December, Duncan, the independent investigator, sent a summary of his preliminary findings to Hobbs — and was summarily fired.

In a preamble of sorts to his unfinished draft report, he listed all the reasons the death penalty is impractical  — expense, long waits, exonerations — but then gets to the matter at hand: the disaster that is lethal injection. 

Among the findings, as Lain points out, were “‘Corrections officials seeking to learn on the eve of an execution what doses of lethal drugs to administer from Wikipedia.’ That’s outrageous.”

Pharmaceutical companies will not supply drugs for executions, so corrections departments have to have them custom-made or “compounded.”

Lain adds, “In 2023, (Corrections Director Ryan) Thornell went on record saying he had ‘serious concerns about the qualification and competency of the compounding pharmacist and the process used to compound the current supply of lethal injection drugs.’ Today, the State tells Arizona’s highest court not that it changed compounders, but that it changed its mind. The very same compounder that it had ‘serious concerns’ about two years ago is now just fine.”

A completed report promised to be scathing, and Duncan even suggested that death by firing squad, as barbaric as it is, was less likely to be botched than lethal injection.

“The ending of a life and overcoming that person’s will and biological command to live is by nature a violent act in every case — even lethal injection,” he wrote in a parenthetical aside.

Duncan suggested to reporters that he was fired after he asked about witnessing execution rehearsals conducted by Corrections staff, and after discovering that the executioners were paid tens of thousands of dollars in cash that the state was not reporting with proper tax documentation.

“Arizona has a long history of execution failures,” Lain said. “Against that backdrop, in 2023, the state promised to bring transparency and accountability to the execution process by conducting an independent review of its entire lethal injection process, but that review was terminated before the judge could complete it.”

But there had also been a political shift since the beginning of the Hobbs administration.  Mayes settled with Mitchell and said executions would go forward under the aegis of her office.  And Donald Trump, who had 13 federal prisoners executed during the last year of his first term, was coming back into office, already enraged about outgoing President Joe Biden commuting the death sentences of most of the prisoners on federal Death Row. Executions, after all, are one way that politicians prove to voters that they are tough on crime. It might have been awkward for Arizona to go forward with them after a particularly damning report commissioned during an earlier, more enlightened political moment.

Instead, Hobbs offered up an assessment by Thornell, who assured her that the department he leads had improved its team and its control over the drugs it procures to carry out executions.

“This is a new team, a team that wasn’t here in the past where we had botched executions,” Hobbs told the media. “And the whole point of doing the thorough review that has been done is to avoid that.”

Lain is not convinced.

“The initial draft summary prepared by the judge identified seriously problematic processes,” Lain said.

“Instead, the state relies on a review it conducted of itself, and says “trust us,” everything is fine.”

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PLW: One Word May Make All the Difference for Lifers Convicted of Felony Murder

Matthew T. Mangino
The Legal Intelligencer
September 26, 2024

The Pennsylvania Supreme Court has agreed to hear oral arguments in a criminal case that will test, when it comes to punishment, whether the Pennsylvania Constitution provides greater protections than the U.S. Constitution.

The constitutional provisions at play are Article I, Section 13 of the Pennsylvania Constitution and the Eighth Amendment to the U.S. Constitution.

Article I, Section 13 of the Pennsylvania Constitution provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.

The Eighth Amendment provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Pennsylvania Supreme Court must decide whether the term "cruel punishment" is more expansive in the punishments it precludes than the term "cruel and unusual punishment."

In what context has this matter made its way to the state's high court?

On Oct. 14, 2014, Derek Lee was one of two men who entered a residence in Allegheny County shared by Leonard Butler and Tina Chapple. According to the Pennsylvania Superior Court, "Both Butler and Chapple were forced into the basement of the home, and then were forced to kneel. Both males were yelling at Butler to give up his money and one used a taser on Butler several times during the attack." Lee took Butler's watch and went up the stairs, leaving the basement.

The second male remained with the couple and shot Butler causing his death.

There is no dispute that Lee did not kill or intend to kill in the commission of the robbery. Following trial, the jury found Lee guilty of second-degree murder, robbery, and conspiracy. Second degree murder, felony murder, is a statutory crime in Pennsylvania promulgated at 25 Pa.C.S.A. 2502 (b), "Criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony."

The Pennsylvania Crimes Code, 18 Pa.C.S.A. 1102(b), provides a mandatory sentence of life in prison for second degree murder. As a result, Lee was sentenced to life without the possibility of parole.

In Pennsylvania, life without parole is often referred to as death-by-incarceration.

Pennsylvania's death penalty is in a de facto moratorium. Gov. Josh Shapiro has said unequivocally that he is opposed to the death penalty, but death-by-incarceration is flourishing in Pennsylvania.

Under Pennsylvania's sentencing scheme, offenders—other than lifers—are sentenced to a minimum and a maximum term of sentence. The maximum must be at least twice the minimum.

Once an inmate has served his minimum sentence, he is eligible for parole. Release from prison is determined by the state's parole board. Once released, the offender is supervised on parole until the expiration of his maximum sentence.

A life sentence in Pennsylvania has no minimum—there is no opportunity for parole—life means life in Pennsylvania.

Over time, the U.S. Supreme Court has back-pedaled from life without parole. The decisions in Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016) are instructive. Lee has cited in his argument the U.S. Supreme Court's finding that "That life-without-parole sentences are sufficiently similar to the death penalty that they may be unconstitutional when applied to people with categorically diminished culpability based on their offense or characteristics."

That is the criticism of Pennsylvania's mandatory sentence of life without parole for second degree murder—diminished culpability. As in Lee's case he was not the shooter, he didn't intend to shoot anyone, yet his sentence provides no hope for redemption, rehabilitation or a return to society.

The Pennsylvania Supreme Court's review of Lee's case comes down to a single word, "unusual." Lee argues that the absence of the word "unusual" in the text of Article I, Section 13 is crucial to finding mandatory life without parole for second degree murder unconstitutional.

In Bucklew v. Precythe, 587 U.S. 119 (2019), U.S. Supreme Court Justice Neil Gorsuch turned to history as he and his conservative colleagues are so eager to do when analyzing an argument. Gorsuch cited a 2009 law review article by John F. Stinneford defining "unusual" in a constitutional sense as "Americans in the 18th and 19th centuries describe unusual government actions that had "fallen completely out of usage for a long period of time." (Appellant's brief at page 17).

Without the limitations of "unusual" in Article 1, Section 13, the Pennsylvania Supreme Court is free to determine if life without parole, although still in use, is unduly cruel. The argument suggests even if the Eighth Amendment to the U.S. Constitution doesn't prohibit life without parole for second degree murder in Pennsylvania, the Pennsylvania Constitution does.

So, does the language of Article I, Section 13 provide greater protection than the Eighth Amendment?

Lee's attorneys say yes. However, in order for Lee to prevail he must persuade the court that the four factors outlined in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), favor the prohibition of life without parole for second degree murder.

The four factors are "the text of the Pennsylvania constitutional provision; the history of the provision, including Pennsylvania case law; related case-law from other states; and 4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence."

At a minimum, the policy considerations are compelling. Pennsylvania is home to thousands of people sentenced to die in prison. The state has the second-highest number of people serving life without parole, nearly 5,100 inmates, approximately 1,200 of whom have been convicted of felony murder, according to the Pennsylvania Department of Corrections.

Only Louisiana and Pennsylvania still impose the sentence without regard for a person's involvement or intent in the crime. According to the Pennsylvania Capital-Star, every other state among the 30 that allow life sentences without parole require an additional level of intent or action by the defendant.

Lee argued in his brief in support of allowance for appeal, "Pennsylvania stands virtually alone in mandating that anyone convicted of felony-murder is sentenced to life in prison with no possibility of parole."

This matter is scheduled for argument on Oct. 8, 2024.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is the author of "The Executioner's Toll," 2010. You can reach him at www.mattmangino.com and follow him on X (formerly Twitter) @MatthewTMangino.

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Creators: Pregnant Women Don't Belong in Prison

Matthew T. Mangino
Creators
April 29, 2024

The United States has the second highest rate worldwide of incarcerated women. In recent decades, there has been a dramatic increase in U.S. correctional population, and women are a rapidly growing segment of that population. The U.S. incarcerates about 65 out of every 100,000 women, according to The Journal of the American Academy of Psychiatry and the Law.

Most women who are incarcerated are within their reproductive years, and many women are pregnant at reception. Nearly 4% of incarcerated women in the U.S. are pregnant; some reports estimate that there are approximately 58,000 pregnant women in jail or prison.

Pregnancy can be challenging to a mother and fetus under the best of circumstances. According to Johns Hopkins University, pregnant women are particularly vulnerable to life-threatening complications if not closely monitored by a physician. Now imagine if you are a pregnant woman in prison.

Nearly 50 years ago, the United States Supreme Court found that the U.S. Constitution requires prisons to provide medical care to inmates by holding that "deliberate indifference to serious medical needs of prisoners" violates the Eighth Amendment's prohibition of cruel and unusual punishment.

However, prisons and jails continue to act with indifference to the care and treatment of pregnant prisoners. For instance, the use of restraints on pregnant women and women in labor appears to knowingly increase the risk of significant medical harm to the mother and unborn child.

Outside of the prison walls, the government and private businesses make a host of accommodations for pregnant and parenting women. The Pregnancy Discrimination Act is a federal statute that protects pregnant workers and requires covered employers to make job-related modifications for pregnant employees. The Act forbids employment discrimination based on pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.

When a family is expecting a new child, the Family Medical Leave Act (FMLA) provides equal leave for both the mother and father. Both, or either, covered parent, may take 12 weeks leave for the birth of a newborn. If both parents work in positions covered by the FMLA, they will both be entitled to leave. FMLA also provides leave for pregnancy-related health reasons.

In prison, the government is not so generous when it comes to pregnant women or women who have recently given birth. A significant majority of correctional facilities do not have on-site obstetric care; pregnant women are typically transported to community-based providers for prenatal care, and women in labor are transferred to medical facilities for delivery. Though policies vary by jurisdiction, during transport, labor, delivery and post-delivery, women are frequently shackled with handcuffs, leg irons and/or waist chains, reported AMA Journal of Ethics.

Shackling pregnant women being transported for or being provided medical treatment is a remnant of the institutions that, have for years, predominately housed men.

Prisons and jails are not equipped to properly care for pregnant women. For instance, pregnant women with mental health problems are advised to stop taking psychotropic drugs for bipolar, anxiety and depression. Obviously, confinement exacerbates their condition. Intensive mental health therapy must, but doesn't always, stand in the void.

Special nutritional concerns like seafood, foods not fully cooked or fruit and vegetables not properly cleaned put women and their babies at risk. Proper intake testing and evaluation, prenatal care and postpartum care, especially mental health care after separation from a newborn child, can go a long way toward protecting pregnant women and their newborn.

Pregnant women do not belong in prisons or jails, but until we get to the point where society can achieve an alternative — at a minimum cruel and unusual methods such as shackling women during prenatal care and childbirth must stop.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Creators: Life Without Parole Cruel and Unusual Punishment

Matthew T. Mangino
Creators
April 3, 2024

Pennsylvania's Supreme Court will consider whether some life without parole sentences for those convicted of murder violate the state and federal Constitutions. Pennsylvania has about 5,100 people serving life without parole.

In Pennsylvania, over 1,100 of those serving life without parole were sentenced for "felony" murder. Pennsylvania is one of only two states that continues to impose a mandatory life-in-prison sentence for "felony" murder.

If an accused participates in a felony that leads to death even if that person did not cause the death, the accused can be charged and convicted of second-degree murder, also known as felony murder. Life without parole is currently the state's only possible sentence for those convicted of second-degree murder.

Life without parole (LWOP) is a growing concern in this country. According to the Sentencing Project, the number of LWOP sentences has more than quadrupled from about 12,500 in 1992 to more than 56,000 as of 2023.

The expansion of LWOP was the result of the confluence of two very different groups. The right-wing — tough-on-crime — hardliners who, beginning in the mid-1980s, declared war on drugs and violent crime and adopted harsher, mandatory sentences, including LWOP.

The second group includes the death penalty abolitionists, left-leaning progressives, who adopted LWOP sentences as a logical alternative to the death penalty. As the death penalty waned — only 24 executions in 2023 — those opposed to the death penalty have now set their sights on LWOP.

The cost and morality of locking-up — forever — a wide swath of offenders began to be questioned in 2012 following a landmark Supreme Court decision involving juvenile offenders.

Fourteen-year-old Evan Miller was accused of murder in Lawrence County, Alabama, in 2003. Miller went to trial and was convicted of murder and sentenced to a mandatory term of life in prison without parole. The United States is the only country that allows the sentence of life without parole for juveniles.

Miller filed an appeal, arguing that sentencing a 14-year-old to life without parole constituted cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution.

In 2012, the U.S. Supreme Court agreed. Justice Elena Kagan, writing for the majority in Miller v. Alabama in what would become a landmark decision wrote, "Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional."

Pennsylvania had the highest population of juvenile lifers in the country. According to the Pennsylvania Department of Corrections, of the 520 juveniles serving life without parole, 497 have been re-sentenced and 303 have been released.

A number of states are reviewing offenses that are subject to LWOP. The Massachusetts Supreme Court banned sentences of life without parole for juveniles in 2013. Today there are 28 states that have banned juvenile LWOP.

In January, the Massachusetts Supreme Court again took the lead issuing a landmark ruling that expanded its earlier holding and raised the minimum age for life without parole from 18 to 21. Washington, D.C., has gone even further raising the age of eligibility for LWOP to 25.

According to Bolt, a digital magazine, over the last 12 months, Connecticut and Illinois both adopted laws to restrict LWOP up to age 21. In Michigan and Washington, judges banned sentencing rules that mandate life without parole for people under 19 and 21, respectively.

Reform proponents in other states are already lining up to be next. According to Bolt, California's Supreme Court heard a case in December that could prohibit life without parole up to age 26.

Today, the rallying cry for reformers is "life without parole is cruel and unusual punishment regardless of the age of the offender."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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PA Supreme Court considers ending death by incarceration

My life is either going to be a testimony or a warning,” Derek Lee told The Nation.

Lee was speaking on a video chat from behind the walls of SCI Smithfield in central Pennsylvania. Now 35 years old, Lee has been imprisoned since he was 29. If nothing changes, he will grow old and die in prison.

In 2016, a Pennsylvania court sentenced Lee to life without parole for a burglary two years earlier that ended with his accomplice fatally shooting the homeowner. Lee was not involved in the killing, but he was convicted of second-degree or felony murder—an unintentional death that happens when the defendant is committing a felony. In Pennsylvania, that means an automatic sentence of life without parole (LWOP).

That sentence, which advocates call “death by incarceration,” means that, no matter how much time has passed or what a person does to transform their life, they have virtually no chance of leaving prison alive. Nearly 80 percent of those sentenced to life without parole in Pennsylvania were, like Lee, under 30 when they were sent to prison—53 percent were between ages 18 and 25

Lee has chosen not to accept this fate. He doesn’t want to die in prison, and he doesn’t want others to die in prison either. Now, he is waging a battle to overturn LWOP for himself and, potentially, over a thousand others sentenced to live and die behind bars in Pennsylvania.

He wants, as he put it, his life to be a testimony, not a warning.

 “I can warn people what not to do, but I’d rather be somebody that you could look to and say, ‘This is what I can do. If I do change, if I do put in the work, if I am sincere,’” he said.

Amovement to end life without parole has been gaining traction in Pennsylvania and across the nation. Family members and those who had previously faced the probability of dying in prison formed campaigns. They rallied at capitols, filed lawsuits, and pushed legislators to change the laws—and to apply them retroactively. They even took their complaint to the United Nations. In May 2023, formerly incarcerated New Yorkers testified before a three-person UN committee set up to examine systemic racism against Black people; four months later, the committee stated that it was “deeply alarmed” by the high rate of death by incarceration sentences and recommended that all prison sentences include parole eligibility within a reasonable number of years. This past November, it recommended a moratorium on LWOP.

Lee knew none of this when he met Bret Grote and Quinn Cozens, attorneys with the Abolitionist Law Center who visited the prison for a 2019 legal seminar. In November 2020, the court reinstated his right to appeal on the grounds that he had been deprived of a lawyer during his initial appeal. The reinstatement came at an opportune time—the Abolitionist Law Center had been searching for a plaintiff whose appeal rights had not expired for their next legal challenge.

With their help, Lee appealed his sentence. A three-judge panel of the state superior court denied his appeal in June 2023, ruling in part that the panel was bound by prior rulings. In a separate memorandum, one of those judges urged the full court to revisit whether a mandatory life without parole sentence for all second-degree murder convictions violates the state’s Constitution. In July, the Abolitionist Law Center, Amistad Law Project, and Center for Constitutional Rights appealed the decision to the Pennsylvania State Supreme Court arguing that life without parole for felony murder violates both the Eighth Amendment ban on cruel and unusual punishment and the state’s Constitution prohibiting “cruel” punishment. They argued that imposing life without parole for those who never intended to take a life is unduly harsh, violating the state Constitution. Pointing to the US Supreme Court decisions, which addressed children’s diminished culpability, they argued that people who did not kill or intend to kill comprise another category of diminished culpability.

The court’s decision could extend far beyond Lee. If his sentence is ruled unconstitutional, it could open the door so that over one thousand Pennsylvanians don’t die in prison.

Lee is keenly aware of how high the stakes are and how any misstep he makes could impact not just him, but people across the state. “There are days when COs and other [men] get on your nerves and you want to react a certain way,” he said. “I remind myself that that’s not the person I am anymore. What I do affects other people—I hold a responsibility not just to myself, but to others. Guys on this block—some of them are second-degree [or felony murder]—are looking at my case, saying, ‘What happens for you is going to affect everybody.’ I try to live up to that responsibility by how I live my life.”

Pennsylvania has the nation’s second-highest number of people (5,100 people) serving life without parole. Over one-fifth have been convicted of felony murder. Seventy percent, like Lee, are Black. Nationwide, nearly 56,000 people have been sentenced to death by incarceration although national data on the percentage condemned for felony murder does not exist.

“I feel deeply that this is the time for this,” Lee told The Nation. “There’s so much positive energy around this issue. It’s the next logical step to correct something that should have been corrected a long time ago.”

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Tennessee legislators seek constitutional amendment to expand detention without bail

A bipartisan group of Tennessee state legislators unveiled a proposed state constitutional amendment  to grant judges more discretion to detain individuals without bail before trial for specific violent criminal charges, reported Jurist.

Tennessee House Speaker Cameron Sexton (R-District 25) made the announcement at Memphis City Hall, flanked by Memphis’ Mayor Paul Young (D), Senate Majority Leader Jack Johnson (R-District 27), a number of state legislators representing Memphis and Shelby County, local law enforcement officials and Shelby County District Attorney Steve Mulroy (D).

Sexton stated:

There’s a lot of cases all across our state that you’ve seen, not just in Memphis, but all across our state, of someone who is out on bail who is a violent criminal who committed another violent crime shortly thereafter that took another victim.

Currently, the Tennessee Constitution permits judges to deny bail only for charges that carry the possibility of the death penalty, typically limited to first-degree murder cases.

Rep. Antonio Parkinson (D-Memphis) supported the announcement saying:

A mother who has lost a son to violent crime, she does not care if you’re Democrat or Republican, … When I speak to the mothers or the parents of a constituent in Cordova whose daughter might have gone through a violent rape or a sexual assault, they don’t care if you’re Democrat or Republican.

Despite the bipartisan support, the proposal faces criticism from some advocates who argue that it won’t effectively address the crime issues in Memphis and the broader state. Rep. Justin Pearson (D-District 81), one of the two state legislators expelled last year due to a House floor protest advocating for gun control and later reinstated, dismissed the proposed amendment as a “useless amendment related to bail that doesn’t address the devastation of violence in our communities.” He urged Republicans to repeal permitless carry laws in Tennessee and establish a fully funded violence prevention office.

Stand for Children Tennessee, a group that advocates for issues such as racial justice, echoed similar views saying:

This is not ‘bail reform’ — it’s an extremist attack on constitutional rights and fundamental American values that are supposed to be based on being innocent until proven guilty, … It will not fix any problem that exists, and it will not make us safer.

For the amendment to become part of the state constitution, it must successfully pass both the Tennessee State House and Senate, during one two-year General Assembly, and then pass by at least two-thirds of the vote in the second round in both chambers. The amendment would then go on a general election ballot.

The Eighth Amendment of the US Constitution bans excessive bail or fines. However, the US Supreme Court has ruled that denial of bail is constitutional. According to a 2022 policy brief from the National Conference of State Legislatures (NCSL), over 20 states have amended their constitutional bail provisions, enabling expanded pretrial detention through a variety of ways.

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Lamenting a new method of execution

Professor Bernard E. Harcourt writes in The New York Times:

After botching a series of executions by lethal injection, the State of Alabama is planning to use nitrogen gas to put condemned prisoners to death. The first execution will amount to a human experiment, because neither Alabama nor any other state has ever tried to kill people this way.

Late last month, prison guards distributed the state’s new execution protocol to prisoners in solitary confinement on Alabama’s death row. One hundred and sixty men and five women await execution in Alabama. They would be secured to a gurney, their nose and mouth would be covered by a mask, and nitrogen would be pumped into their lungs until they suffocate.

Alabama is seeking to conduct the first such experiment on Kenneth Eugene Smith, who already survived a botched execution. Last November, Mr. Smith spent hours strapped to a lethal-injection gurney as the execution team needled around in several locations to insert two intravenous lines without success, before calling off the execution. It is hard to imagine a more ghastly ordeal than being marched back a second time to face the executioner and a new method of execution that has the possibility of unknown agony after decades in prison awaiting death.

Mr. Smith was convicted of the 1988 murder of Elizabeth Dorlene Sennett, with the jury concluding that Ms. Sennett’s husband, a pastor, had paid Mr. Smith to kill her. Jurors voted 11 to 1 to sentence him to life in prison with no opportunity for parole. But a judge overruled the jury and ordered that Mr. Smith be executed. Alabama prohibited judges from overriding juries in future capital cases in 2017; it is no longer allowed anywhere in the United States.

What happens next to Mr. Smith will be up to the courts.

Death by nitrogen hypoxia — by breathing high concentrations of nitrogen, starving a person of oxygen until death — occurs from time to time accidentally. Federal workplace regulations address the risks of nitrogen toxicity on the job. Pilots undergo training involving the loss of oxygen at high altitudes to familiarize themselves with anticipatory sensations. But there are no known uses of nitrogen hypoxia as a method of execution that I am aware of, based on my research, so we have no firsthand experience to assess the likelihood of agony and suffering under the typically dire conditions of execution chambers.

Executions are conducted not in pristine hospital settings but in a pressure cooker of last-minute, exhausted, careless judgments in a prison chamber. The typical executioner is not a medical doctor but someone who is moonlighting. There are colossal psychological and emotional pressures on prison staff members during executions, which are most often conducted in the middle of the night and result in poor conditions for everyone involved, including the lawyers.

Proponents of the nitrogen hypoxia method, also approved by Mississippi and Oklahoma but not yet used in those states, argue that nitrogen gas will quickly render the subject unconscious, with death ensuing within minutes. But there are a lot of things that could go wrong. Should the mask not fit properly and oxygen seep in, the person may be left gasping in agony for air and suffer suffocation. This could result in severe brain damage rather than death. If the outflow is not properly regulated, the person will be asphyxiated by carbon dioxide. There may also be a danger of nitrogen toxicity to the people in the prison workplace or present for the executions.

We do not even reserve this fate for dogs or cats. Nitrogen gas asphyxiation was previously used to euthanize pets. However, the American Veterinary Medical Association no longer recommends nitrogen asphyxiation for nonavian animals, citing data that indicates those animals may experience panic, pain and severe physical distress before dying. The group states in its 2020 guidelines that nitrogen gas “is unacceptable” for animals other than chickens and turkeys.

What past executions amply demonstrate is that the State of Alabama is not competent at performing the task. It is one thing to “botch” an execution, which is commonly understood to mean that an execution caused unnecessary agony or showed gross incompetence by the execution team. Alabama has botched four of the nation’s nine known botched executions since 2018. It is another thing for a state to preside over both a botched and failed execution, in which the condemned person actually survives. Three of the six known failed executions since 1946, according to my research, have taken place in Alabama, and all of those have occurred since 2018.

In February of that year, Alabama executioners spent nearly three hours jabbing my client Doyle Lee Hamm’s groin, ankles and shin bone before they released him from the gurney and he stumbled off in excruciating pain. At the time, he was suffering from terminal cancer and his veins were compromised. Needling his groin during several failed attempts to reach the femoral vein, they apparently hit his bladder. A large amount of blood soaked the gurney near his groin. He survived but ended up dying of cancer in prison.

The Alabama execution team then effectively tortured Alan Eugene Miller in September 2022. The state later agreed not to use lethal injection to execute him and he, too, now awaits death by nitrogen hypoxia. And evidence suggests an execution in July 2022 was also botched, though the prisoner, Joe Nathan James, died on the gurney.

After each of these horrors, state officials managed to convince the next judge that the next time they would know what they were doing. Then there was the botched and failed attempt to execute Mr. Smith two months later.

After that last disaster, Alabama’s governor, Kaye Ivey, imposed a moratorium on executions to investigate these repeated failures. But instead of appointing an independent review commission, as other governors have done, Governor Ivey assigned the task to the state’s Department of Corrections, the very agency responsible for the botched and failed executions. Corrections officials swiftly concluded that they were fully prepared to restart executions, now using nitrogen gas to kill condemned prisoners.

Alabama seems unable to stop tinkering, ever more ghoulish, with the “machinery of death,” as Justice Harry Blackmun called capital punishment.

Lawyers for Mr. Smith are likely to object to this human experiment on the basis that it violates the Eighth Amendment’s proscription against “cruel and unusual punishments.” It is true that Mr. Smith’s lawyers appealed to the court for this method of execution. But that was only because of the twisted logic of the U.S. Supreme Court’s death penalty jurisprudence, under which condemned prisoners must plead for their preferred alternative method of putting someone to death — and which Mr. Smith’s lawyers did after the nightmare of his failed lethal injection execution. He invoked nitrogen, the alternative available under Alabama statutes, a method the state enacted in March 2018 after the Hamm execution fiasco. But under the Supreme Court’s guidelines, the alternative must be not only “feasible” and “readily implemented,” but also one that “significantly reduces a substantial risk” of suffering.

Under the Eighth Amendment, execution by nitrogen is surely unusual because it has never been used as a method of execution in this country or elsewhere, as far as we know. It is also likely to cause needless agony and suffering in the execution chamber. Plus, the threat of a second attempt at execution under circumstances of human experimentation is unconscionably cruel.

The recent track record in the federal courts is not comforting, though. The conservative supermajority at the Supreme Court, especially, has recently been lifting stays of execution imposed by the lower federal courts at a frightening pace, in unsigned opinions, without explanation. Their inexplicable behavior in death penalty cases has given rise to an alarming shadow docket. Some of the justices have become, if anything, the nation’s executioners.

Of course, that does not mean we can throw up our hands. Moments like these present an opportunity for the justices to step up and lead the country to a higher plane — to what the court, in its Eighth Amendment rulings, has so often called “the evolving standards of decency that mark the progress of a maturing society.” It is often at junctures like these that righteous magistrates come forward to resist inhumanity — like the Portuguese consul general in Bordeaux, France, Aristides de Sousa Mendes, who defied expectations and issued visas for refugees fleeing the country in June 1940, saving thousands of lives.

Let us hope that the justices exercise their license to practice in the ways exemplified by Sousa Mendes. Let us hope they demonstrate cleareyed analysis and prevent this human experimentation. In the meantime, it will fall on the rest of us to show the world that this is not what we stand for.

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