In the United States, states often look to one another for new policy ideas, frequently leading to imitation. Political scientist David Schultz notes that while some policies are beneficial, many fail to deliver because states replicate them without assessing their effectiveness. This tendency is evident in the domain of the death penalty. When one state adopts a new execution method, others typically follow suit. This is why Louisiana aims to mimic Alabama’s adoption of nitrogen hypoxia, despite Alabama’s lack of success with the method. Courts should prevent Louisiana from proceeding without demonstrating proficiency first.
This is not a new trend. History shows a recurring pattern of states adopting execution technologies after one begins using them. For example, New York introduced the electric chair in 1888, viewed by some as a civilizing advancement. However, its first use resulted in a horrific execution. Despite this, states such as Ohio, Massachusetts, New Jersey, and Virginia adopted electrocution soon after. Eventually, electrocution became the most routine execution method in the U.S.
Lethal injection followed a similar trajectory, initiated by Oklahoma in 1977 and first implemented by Texas in 1982, with many states soon adopting it. Now, nitrogen hypoxia is the latest method making the rounds. First approved by Oklahoma in 2015, it is now legal in Alabama, Arkansas, Louisiana, and Mississippi. In January 2024, Alabama executed Kenneth Smith using nitrogen hypoxia, despite visible distress and convulsions during the procedure. Shortly afterwards, Louisiana officially integrated the method following Alabama’s protocol, preparing to execute Todd Wessinger for a 1995 double murder.
Wessinger has filed a lawsuit claiming that nitrogen hypoxia poses a severe risk of suffering and distress due to the feeling of suffocation prior to unconsciousness. His lawsuit points out how Louisiana sought to emulate Alabama’s approach, despite the Eleventh Circuit Court of Appeals recognizing the significant risks associated with Alabama’s protocol. Each of Alabama’s executions using this method faced major issues and cruelty. This should compel the Federal District Court for the Middle District of Louisiana to halt such imitation.
Schultz criticizes the assumption that states act as “laboratories of public-policy innovation,” suggesting that they often replicate failed policies driven by political misconceptions. Todd Wessinger deserves not to suffer from one of these replicated policy failures.
Austin Sarat serves as the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.