In a federal system like our own, states wanting to do something new often look to the experience of other states and imitate them. The results of such imitation are by no means certain. “Sometimes,” political scientist David Schultz argues, “those policies are good ones, but more often borrowing from other states is a short-cut mechanism that results in policies that fail to deliver. States,” he adds, “become creatures of me-tooism, repeating and replicating policy initiatives found elsewhere without asking if in fact they work.” That is as true when it comes to the death penalty as it is in any other policy area. History suggests that once one state adopts a new execution method, other states are certain to follow. That explains why Louisiana wants to imitate Alabama’s embrace of nitrogen hypoxia — even though the latter has yet to get it right. Courts should not allow it to do so until it can show that it can get it right. This is not the first time that we’ve seen this pattern of imitation in execution technologies. Take the electric chair, for example. In 1888, New York adopted the chair as its execution method. As Professor Jürgen Martschukat says, “death by electrocution was widely perceived as an advance of civilization. It was part of the remodeled, modern world … and, as such, it was understood to give society a sense of elevation.” Two years later, when New York became the first state to use that execution method, things did not go as planned, and William Kemmler died a gruesome death. But that did not stop other states from embracing the electric chair. Between 1897 and 1908, Ohio, Massachusetts, New Jersey and Virginia chose it to replace hanging. It didn’t take long for electrocution to become the most frequently used execution method in the U.S. Decades later, a similar pattern marked the emergence and spread of lethal injection. Oklahoma led the way, passing a law in 1977 to authorize lethal injection executions. Five years later, Texas became the first state to use the method when it executed Charles Brooks, Jr. Soon, other states followed suit. Today, we are seeing the same pattern with America’s newest execution method, nitrogen hypoxia. It was first adopted in Oklahoma in 2015 and is now also legal in Alabama, Arkansas, Louisiana and Mississippi. It wasn’t until January 2024 that Alabama carried out the nation’s first nitrogen hypoxia execution, putting Kenneth Smith to death. But, as the AP reports, as the gas started to flow, Smith “shook in thrashing spasms and seizure-like movements for several minutes at the start of the execution. The force of his movements caused the gurney to visibly move at least once.” Three months later, Louisiana added nitrogen hypoxia to its menu of execution methods. And as a lawsuit filed on Sept. 4 alleges, Louisiana fully adopted Alabama’s nitrogen hypoxia procedure. Louisiana plans to use that procedure to execute Todd Wessinger for the 1995 killings of two people at Calendar's Restaurant in Baton Rouge. Wessinger alleges that “execution by nitrogen hypoxia creates a substantial risk of serious harm and severe pain.” “Nitrogen hypoxia,” the suit continues, “kills by depriving a conscious person of oxygen. As oxygen deprivation intensifies, the condemned prisoner experiences severe air hunger — the primal, physical, and intensely distressing sensation of suffocation — before losing consciousness.” The suit points out that after Louisiana authorized nitrogen hypoxia as a method of execution, corrections officials “sought to replicate Alabama’s system as closely as possible.” In fact, they considered only Alabama’s nitrogen-hypoxia protocol. Meantime, Wessinger’s suit details the serious problems and abundant cruelty that have plagued every one of Alabama’s seven nitrogen hypoxia executions. And Wessinger reminds the court that the Eleventh Circuit Court of Appeals held in June that Alabama’s nitrogen-hypoxia protocol presented “a substantial risk of serious harm that was ‘not conjectural, speculative, or doubtful.’” All of this should be enough for the Federal District Court for the Middle District of Louisiana to stop that state from blindly imitating Alabama. What is unfolding is an example of what Schultz calls an unverified belief that states are “laboratories of public-policy innovation.” However, “often they are no more than factories of replication, captured by political myths and doomed to re-enact failed policies.” Todd Wessinger deserves better than to be a victim of one such failed policy. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

In a federal system like our own, states wanting to do something new often look to the experience of other states and imitate them. The results of such imitation are by no means certain. “Sometimes,” political scientist David Schultz argues, “those policies are good ones, but more often borrowing from other states is a short-cut mechanism that results in policies that fail to deliver. States,” he adds, “become creatures of me-tooism, repeating and replicating policy initiatives found elsewhere without asking if in fact they work.” That is as true when it comes to the death penalty as it is in any other policy area. History suggests that once one state adopts a new execution method, other states are certain to follow. That explains why Louisiana wants to imitate Alabama’s embrace of nitrogen hypoxia — even though the latter has yet to get it right. Courts should not allow it to do so until it can show that it can get it right. This is not the first time that we’ve seen this pattern of imitation in execution technologies. Take the electric chair, for example. In 1888, New York adopted the chair as its execution method. As Professor Jürgen Martschukat says, “death by electrocution was widely perceived as an advance of civilization. It was part of the remodeled, modern world … and, as such, it was understood to give society a sense of elevation.” Two years later, when New York became the first state to use that execution method, things did not go as planned, and William Kemmler died a gruesome death. But that did not stop other states from embracing the electric chair. Between 1897 and 1908, Ohio, Massachusetts, New Jersey and Virginia chose it to replace hanging. It didn’t take long for electrocution to become the most frequently used execution method in the U.S. Decades later, a similar pattern marked the emergence and spread of lethal injection. Oklahoma led the way, passing a law in 1977 to authorize lethal injection executions. Five years later, Texas became the first state to use the method when it executed Charles Brooks, Jr. Soon, other states followed suit. Today, we are seeing the same pattern with America’s newest execution method, nitrogen hypoxia. It was first adopted in Oklahoma in 2015 and is now also legal in Alabama, Arkansas, Louisiana and Mississippi. It wasn’t until January 2024 that Alabama carried out the nation’s first nitrogen hypoxia execution, putting Kenneth Smith to death. But, as the AP reports, as the gas started to flow, Smith “shook in thrashing spasms and seizure-like movements for several minutes at the start of the execution. The force of his movements caused the gurney to visibly move at least once.” Three months later, Louisiana added nitrogen hypoxia to its menu of execution methods. And as a lawsuit filed on Sept. 4 alleges, Louisiana fully adopted Alabama’s nitrogen hypoxia procedure. Louisiana plans to use that procedure to execute Todd Wessinger for the 1995 killings of two people at Calendar's Restaurant in Baton Rouge. Wessinger alleges that “execution by nitrogen hypoxia creates a substantial risk of serious harm and severe pain.” “Nitrogen hypoxia,” the suit continues, “kills by depriving a conscious person of oxygen. As oxygen deprivation intensifies, the condemned prisoner experiences severe air hunger — the primal, physical, and intensely distressing sensation of suffocation — before losing consciousness.” The suit points out that after Louisiana authorized nitrogen hypoxia as a method of execution, corrections officials “sought to replicate Alabama’s system as closely as possible.” In fact, they considered only Alabama’s nitrogen-hypoxia protocol. Meantime, Wessinger’s suit details the serious problems and abundant cruelty that have plagued every one of Alabama’s seven nitrogen hypoxia executions. And Wessinger reminds the court that the Eleventh Circuit Court of Appeals held in June that Alabama’s nitrogen-hypoxia protocol presented “a substantial risk of serious harm that was ‘not conjectural, speculative, or doubtful.’” All of this should be enough for the Federal District Court for the Middle District of Louisiana to stop that state from blindly imitating Alabama. What is unfolding is an example of what Schultz calls an unverified belief that states are “laboratories of public-policy innovation.” However, “often they are no more than factories of replication, captured by political myths and doomed to re-enact failed policies.” Todd Wessinger deserves better than to be a victim of one such failed policy. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

In a federal system like our own, states wanting to do something new often look to the experience of other states and imitate them. The results of such imitation are by no means certain. “Sometimes,” political scientist David Schultz argues, “those policies are good ones, but more often borrowing from other states is a short-cut mechanism that results in policies that fail to deliver. States,” he adds, “become creatures of me-tooism, repeating and replicating policy initiatives found elsewhere without asking if in fact they work.” That is as true when it comes to the death penalty as it is in any other policy area. History suggests that once one state adopts a new execution method, other states are certain to follow. That explains why Louisiana wants to imitate Alabama’s embrace of nitrogen hypoxia — even though the latter has yet to get it right. Courts should not allow it to do so until it can show that it can get it right. This is not the first time that we’ve seen this pattern of imitation in execution technologies. Take the electric chair, for example. In 1888, New York adopted the chair as its execution method. As Professor Jürgen Martschukat says, “death by electrocution was widely perceived as an advance of civilization. It was part of the remodeled, modern world … and, as such, it was understood to give society a sense of elevation.” Two years later, when New York became the first state to use that execution method, things did not go as planned, and William Kemmler died a gruesome death. But that did not stop other states from embracing the electric chair. Between 1897 and 1908, Ohio, Massachusetts, New Jersey and Virginia chose it to replace hanging. It didn’t take long for electrocution to become the most frequently used execution method in the U.S. Decades later, a similar pattern marked the emergence and spread of lethal injection. Oklahoma led the way, passing a law in 1977 to authorize lethal injection executions. Five years later, Texas became the first state to use the method when it executed Charles Brooks, Jr. Soon, other states followed suit. Today, we are seeing the same pattern with America’s newest execution method, nitrogen hypoxia. It was first adopted in Oklahoma in 2015 and is now also legal in Alabama, Arkansas, Louisiana and Mississippi. It wasn’t until January 2024 that Alabama carried out the nation’s first nitrogen hypoxia execution, putting Kenneth Smith to death. But, as the AP reports, as the gas started to flow, Smith “shook in thrashing spasms and seizure-like movements for several minutes at the start of the execution. The force of his movements caused the gurney to visibly move at least once.” Three months later, Louisiana added nitrogen hypoxia to its menu of execution methods. And as a lawsuit filed on Sept. 4 alleges, Louisiana fully adopted Alabama’s nitrogen hypoxia procedure. Louisiana plans to use that procedure to execute Todd Wessinger for the 1995 killings of two people at Calendar's Restaurant in Baton Rouge. Wessinger alleges that “execution by nitrogen hypoxia creates a substantial risk of serious harm and severe pain.” “Nitrogen hypoxia,” the suit continues, “kills by depriving a conscious person of oxygen. As oxygen deprivation intensifies, the condemned prisoner experiences severe air hunger — the primal, physical, and intensely distressing sensation of suffocation — before losing consciousness.” The suit points out that after Louisiana authorized nitrogen hypoxia as a method of execution, corrections officials “sought to replicate Alabama’s system as closely as possible.” In fact, they considered only Alabama’s nitrogen-hypoxia protocol. Meantime, Wessinger’s suit details the serious problems and abundant cruelty that have plagued every one of Alabama’s seven nitrogen hypoxia executions. And Wessinger reminds the court that the Eleventh Circuit Court of Appeals held in June that Alabama’s nitrogen-hypoxia protocol presented “a substantial risk of serious harm that was ‘not conjectural, speculative, or doubtful.’” All of this should be enough for the Federal District Court for the Middle District of Louisiana to stop that state from blindly imitating Alabama. What is unfolding is an example of what Schultz calls an unverified belief that states are “laboratories of public-policy innovation.” However, “often they are no more than factories of replication, captured by political myths and doomed to re-enact failed policies.” Todd Wessinger deserves better than to be a victim of one such failed policy. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.