De’Onna Nixson, Associate Member, Immigration and Human Rights Law Review
I. Introduction
It is 7:53 p.m., and Kenneth Eugene Smith is securely strapped to a gurney with a blue-rimmed respirator mask covering his face.[1] A microphone is brought before him so he can say his final words.[2] Three minutes later, at 7:56 p.m., Reverend Jeff Hood begins to pray, and nitrogen gas begins to fill Smith’s mask.[3] Within two minutes, Smith’s body begins to thrash violently, shaking the gurney several times.[4] The convulsions continue for two minutes, and while still appearing conscious, he begins to breathe heavily for another five to seven minutes.[5] At 8:07 p.m., Smith takes his last visible breath.[6] A full eighteen minutes later, at 8:25 p.m., Smith is finally pronounced dead.[7] On Thursday, January 25, 2024, in Alabama, Kenneth Eugene Smith became the first person in America to be executed using the poisonous gas, nitrogen hypoxia.[8]
Now, Ohio lawmakers are considering following suit. Ohio House Bill 36 proposes nitrogen hypoxia as an alternative to lethal injection, which would allow the state to resume executions despite its de facto moratorium.[9] However, international human rights bodies have already condemned the nitrogen hypoxia method as torture: cruel, inhumane, and degrading treatment.[10] Replacing lethal injection with nitrogen hypoxia merely exchanges one inhumane method for another.[11]
Instead, Ohio should abolish the death penalty altogether. Even former Ohio Supreme Court Justice Paul Pfeifer, who helped resurrect Ohio’s death penalty statute in 1981, later stated that, “The death penalty in Ohio has become what I call a death lottery.”[12]
This Blog examines Ohio’s use of capital punishment and its blatant violation of fundamental human rights. Capital punishment violates the right to life and subjects individuals to cruel, inhumane, and degrading punishment.[13] Yet it persists under the guise of legality, shielded by constitutional frameworks that permit what international law condemns.[14] The death penalty is a broken policy and a reminder that what is lawful can still violate the most basic human rights.[15]
II. Background
Around the world, the death penalty has increasingly been recognized as incompatible with fundamental human rights.[16] The United States is one of the few democracies that continues to use the death penalty, despite its commitments under international human rights law.[17]
A. International Law
The International Covenant on Civil and Political Rights (ICCPR) is an international treaty adopted by the United Nations in 1966.[18] Article 6 of the treaty provides that, “Every human being has the inherent right to life. … No one shall be arbitrarily deprived of his life.”[19] Article 7 states that, “No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment.”[20] Although the United States ratified the ICCPR in 1992, it declared that the treaty’s provisions would not be enforceable domestically without enabling legislation from Congress.[21] This reservation limits the ICCPR’s practical impact in U.S. law, preventing individuals from invoking its protections in American courts.[22] Additionally, the United States declined to ratify the Second Optional Protocol to the ICCPR, which aims to abolish capital punishment altogether—leaving states free to continue authorizing executions.[23]
Furthermore, in 2007, the UN General Assembly adopted a resolution calling for a worldwide moratorium on the death penalty.[24] Since then, new versions of the resolution have been approved during its General Assembly biennial sessions.[25] The United States has consistently voted against these resolutions, most recently in 2022. The United States voted against the moratorium because the Eighth Amendment already provided an adequate safeguard against cruel and unusual punishment.[26] However, the execution practices permitted under the Eighth Amendment are difficult to reconcile with international findings that identify many U.S. execution practices as inhumane.[27]
In 2018, the Inter-American Commission on Human Rights (IACHR), an autonomous organ of the Organization of American States, found the United States responsible for violating an inmate’s right to humane treatment.[28] The IACHR ruled that “[t]he very fact of spending 20 years on death row is … excessive and inhuman [punishment.]” Yet over 1,300 prisoners in the United States have been on death row for more than two decades, a reality that stands in direct conflict with the right to be free from cruel, inhuman or unusual punishment.[29]
Together, these findings expose the limits of the Eighth Amendment when measured against international human rights standards.[30] By refusing to ratify the Second Protocol to the ICCPR, the United States continues to rely on its constitutional protections: protections that have proven inadequate to prevent cruel and unusual punishment, leaving inmates vulnerable to inhumane treatment.[31] Moreover, in doing so, the United States isolates itself from the growing global consensus—now shared by 70% of countries—that prolonged death row confinement and capital punishment alone violate human dignity.[32] This dissonance between international human rights standards and domestic constitutional interpretation is mirrored in state systems like Ohio’s, where the death penalty continues to operate under a veneer of legality despite its inhumanity.[33]
B. Ohio Law
Ohio reinstated the death penalty in 1981 after revising its statutes to comply with constitutional requirements, and executions resumed in 1999 following a two-decade pause.[34] Since 1999, Ohio has carried out 56 executions, ranking eighth in the nation for the most executions in the modern death penalty era.[35]
Although Ohio remains one of twenty-seven states that have not abolished the death penalty, it has not conducted an execution since 2018.[36] This unofficial moratorium continues into 2025, as Governor Mike DeWine has issued three more reprieves.[37] All executions in the state have been halted until the Ohio Department of Rehabilitation and Correction can develop a new execution protocol that is approved by the court.[38]
In 2019, U.S. Magistrate Judge Michael Merz ruled that Ohio’s then-current execution protocol, which relied on the sedative midazolam, risked inflicting severe pain akin to waterboarding and chemical fire.[39] Further complicating matters, pharmaceutical companies have refused to supply lethal injection drugs, citing ethical obligations to preserve life rather than end it.[40] Consequently, Governor Mike DeWine has continued to issue reprieves and direct state officials to find alternative methods of execution.[41] By seeking a new way to execute rather than reconsidering the practice itself, Ohio reignites an enduring debate of whether state-sanctioned killing can ever be humane.[42]
III. Discussion
Is it truly possible for state-sanctioned killing to be humane?[43] The United States justice system, which prides itself on fairness, equality, and decency, has long used the Eighth Amendment to protect its citizens from excessive punishment.[44] However, if taking a life is accepted as an act of cruelty, how is it justified when a state does the same? By focusing on whether an execution minimizes ‘cruel and unusual’ suffering, the system presumes there exists some acceptable or humane way to carry out state-sanctioned killings.[45] The following discussion examines the death penalty’s supposed justifications of deterrence, closure, and fairness, but reveals how, in practice, it remains a system marked by cruelty, inequality, and injustice.
A. An Unusual and Arbitrary Process
Capital punishment is unusual.[46] It is irregularly imposed, inconsistently applied, and deeply marked by racial and geographic disparities.[47] In Ohio, as of 2024, 44% of murder victims were Black males, but only 13% of death sentences involved at least one Black male victim.[48] Meanwhile, homicides involving a white female victim are six times more likely to result in an execution.[49] Additionally, prosecutors in Hamilton County are almost five times more likely to pursue the death penalty when the victim is white.[50] When the pursuit of state-sanctioned killing hinges on the prosecutor’s discretion, the victim’s race, or the crime’s location, the system cannot credibly claim fairness.[51]
Is fairness essential for justice? English jurist William Blackstone once wrote, “It is better that ten guilty persons escape than that one innocent suffer.” This principle, foundational to American justice, demands that the system err on the side of protecting the innocent.[52] Yet capital punishment’s record reveals both arbitrariness and fallibility.[53] Since 1981, Ohio has exonerated eleven people from death row after they were proven innocent because of prosecutorial misconduct, unreliable witness testimony, or newly available evidence.[54] Although the number may seem small, since Ohio reinstated capital punishment in 1981, roughly one in every five people sentenced to death has been found innocent.[55] Even a single wrongful conviction exposes the system’s unreliability; the taking of a life should not be afforded any margin of error.[56] These racial and procedural disparities reveal a system governed more by chance than by justice.[57] Unfortunately, the issues with the death penalty extend beyond who is sentenced to death and reach into how the sentence is carried out.
B. Cruelty and Torture
The cruelty of capital punishment is evident in the suffering it inflicts both physically and psychologically.[58] In 2019, U.S. Magistrate Judge Michael Merz found that Ohio’s three-drug lethal injection protocol was likely to cause severe pain and needless suffering, concluding it would “almost certainly” violate the Eighth Amendment.[59] However, beyond the act of execution itself, international human rights bodies have also similarly condemned the psychological torment of death row confinement.[60] The IACHR ruled that waiting twenty years under a death sentence constitutes “excessive and inhuman” punishment.[61] This “death row phenomenon” produces extreme psychological trauma, conditions widely recognized as torture under international law.[62] As of 2020, Ohio had violated the rule against excessive and inhumane punishment 85 times, largely resulting from incarcerating individuals for decades at a time.[63]
Despite these findings, Ohio legislators now propose to replace lethal injections with nitrogen hypoxia.[64] Yet the first U.S. execution using this method left Kenneth Eugene Smith convulsing and gasping for air before he died.[65] UN experts have already condemned the execution as cruel and inhumane.[66] Should Ohio adopt nitrogen hypoxia, it would not resolve the constitutional or human rights concerns with the death penalty; it would merely replace one inhumane method with another.[67]
C. Moral Dissonance
Additionally, the death penalty’s flaws expose more than administrative failure; they reveal a deeper dissonance between what is legal and what is right.[68] Throughout U.S. history, laws reflecting the values of their time have sanctioned what we now recognize as moral wrongs: slavery, segregation, and the denial of basic rights to women and minorities.[69] Likewise, the death penalty persists as a lawful practice that violates the very principles of dignity, equality, and humanity that the law purports to protect.[70] However, even as morality and legality diverge, proponents continue to defend the death penalty through claims of deterrence and closure for victims’ loved ones.[71]
D. Justifications of the Death Penalty
The claim that the death penalty deters crime relies on the assumption that the threat of execution deters potential offenders.[72] The deterrence rationale frames execution as a tool of prevention rather than revenge.[73] However, a 2012 National Research Council report found that deterrence studies are methodologically flawed and cannot support the belief that executions prevent homicides.[74] Research also shows that homicide rates in states without the death penalty are equal to or lower than in those that retain it.[75] Therefore, the continued reliance on the deterrence justification, even with counter studies, sparks criticism that the death penalty functions less as a measure of crime control and more as a symbol of state authority and retribution.[76]
Another common justification is that executions provide closure for victims’ families, offering a sense of justice and healing after an unspeakable loss.[77] Yet Ohio’s history shows that this assumption does not hold true in every family’s case.[78] For some families, the pursuit of the death penalty only compounds their trauma, forcing them through years of litigation and appeals.[79] For example, in 1995, when a woman named Sister Joanne Mascha was assaulted and murdered near her residence, her fellow Ursuline Sisters of Cleveland pleaded with prosecutors not to seek the death penalty for her killer, Daniel Pitcher, who was then just 22 years old.[80] Their request was ignored.[81] Cases like this illustrate how prosecutorial zeal reveals the arbitrariness of the death penalty system. Furthermore, capital punishment is not the only option; there are alternatives to providing justice.
E. Toward Abolition
Ohio now stands at a crossroads. The evidence is clear: capital punishment is unreliable, arbitrary, degrading, and a practice out of step with constitutional principles and international human rights standards.[82] The state no longer needs to search for new methods of execution; it must confront the reality that the death penalty itself cannot be made humane.[83]
Alternatives already exist. Life imprisonment without parole ensures that individuals who commit the most serious crimes are permanently removed from society while eliminating the risk of wrongful execution.[84] Other states have also demonstrated that justice and public safety can be achieved without executions.[85] Ohio can follow their example by adopting alternatives that protect communities without sacrificing human dignity, such as reinvesting the substantial costs of capital prosecutions into victims’ services, homicide investigations, and crime-prevention programs.[86]
Real change will only occur if Ohioans act. Citizens must make their voices heard by voting for leaders who support abolition, backing legislation that ends capital punishment, and refusing to accept a system that operates as a “death lottery.”[87] Advocacy organizations such as Ohioans to Stop Executions provide resources, community networks, and opportunities to advance abolition efforts.[88] Joining their cause is a way to push Ohio toward justice and away from the cruelty of state-sanctioned killing.[89]
IV. Conclusion
Ohio’s state-sanctioned executions violate fundamental human rights.[90] The death penalty strips individuals of the right to life, subjects them to cruelty and torture, and is applied arbitrarily.[91] Ohio’s reliance on execution, in any form, undermines dignity, equality, and justice.[92] Calling for abolition does not excuse violent crime or deny justice to victims; it demands a justice system that is, itself, just.
[1] Kim Chandler, An eyewitness account of what happened at the nation’s 1st nitrogen gas execution, PBS NEWS (Jan. 27, 2024), https://www.pbs.org/newshour/nation/an-eyewitness-account-of-what-happened-at-the-nations-1st-nitrogen-gas-execution [https://perma.cc/AW8U-Y744].
[2] Id.
[3] Id.
[4] Id.
[5] Bernard E. Harcourt, Human Experimentation in Alabama, The Columbia Ctr. for Contemp. Critical Thought (Jan. 31, 2024), https://the1313.law.columbia.edu/2024/01/31/bernard-e-harcourt-human-experimentation-in-alabama/ [https://perma.cc/Y39T-EDCC].
[6] Id.
[7] Chandler, supra note 1.
[8] Harcourt, supra note 5.
[9] See generally, Sheetal Asrani-Dann & Philipp Dann, Moratorium, Oxford Pub. Int’l L., (March 2011) (providing a broad explanation of de facto moratorium) https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1538 [https://perma.cc/45PB-WGWR]; H.B. 36, 136th Gen. Assemb., Reg Sess. (Ohio 2025).
[10] Press Release, Special Procedures, United States: Experts Call for Urgent Ban on Executions by Nitrogen Gas in Alabama, U.N. Office of the High Commissioner for Human Rights, Nov. 20, 2024 [hereinafter Call to Ban Nitrogen Gas Executions].
[11] Nickie J. Antonio, It’s Time to End Ohio’s Death Penalty, The Ohio Senate (Nov. 1, 2023), https://ohiosenate.gov/news/the-democratic-standard/its-time-to-end-ohios-death-penalty [https://perma.cc/95PT-X3QS]; Call to Ban Nitrogen Gas Executions, supra note 10.
[12] Id.
[13] Death Penalty, Amnesty Int’l, https://www.amnesty.org/en/what-we-do/death-penalty/?utm_source [https://perma.cc/MEM5-Z2YH] (last visited Nov. 9, 2025) [hereinafter Amnesty Int’l].
[14] Antonio, supra note 11; Call to Ban Nitrogen Gas Executions, supra note 10.
[15] Amnesty Int’l, supra note 13.
[16] Id.
[17] International, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/policy/international [https://perma.cc/FKH4-V8DR] (last visited Nov. 9, 2025) [hereinafter International].
[18] Human Rights, Death Penalty Info. Ctr, https://deathpenaltyinfo.org/policy-issues/policy/human-rights [https://perma.cc/2WCW-H99B] (last visited Nov. 9, 2025) [hereinafter Human Rights].
[19] International Covenant on Civil and Political Rights, art 6., Dec. 16, 1966, 999 U.N.T.S. 171, S. Treaty Doc. 95-20, 6 I.L.M. 368 (1967) [hereinafter ICCPR].
[20] Id. at art. 7.
[21] Human Rights, supra note 18.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Robert Dunham, Patrick Geiger, Steven Czarnecki et al., DPIC Analysis — At Least 1,300 Prisoners are on U.S. Death Rows in Violation of U.S. Human Rights Obligations, Death Penalty Info. Ctr. (June 22, 2020) https://deathpenaltyinfo.org/research/analysis/reports/special-reports/dpic-analysis-at-least-1-300-prisoners-are-on-u-s-death-rows-in-violation-of-u-s-human-rights-obligations [https://perma.cc/M3R2-FGBE] [hereinafter DPIC Analysis].
[29] Id.
[30] Human Rights, supra note 18.
[31] Id.
[32] International, supra note 17.
[33] Overview, Capital Punishment, Ohio Dept. of Rehabilitation & Correction, https://drc.ohio.gov/about/capital-punishment [https://perma.cc/J885-M3XP] (last visited Nov. 9, 2025).
[34] History, Ohioans to Stop Executions, https://archive.otse.org/the-death-penalty-in-ohio/history/#:~:text=The%20history%20of%20the%20death,eligible%20for%20the%20death%20penalty [https://perma.cc/UVV3-22VH] (last visited Nov. 9, 2025); Jo Ingles, Ohio lawmakers are again considering abolishing the death penalty. Will it pass this time, WOSU Pub. Media (Oct. 4, 2023), https://www.wosu.org/2023-10-04/ohio-lawmakers-are-again-considering-abolishing-the-death-penalty-will-it-pass-this-time [https://perma.cc/8US9-5BK3].
[35] Ohio Joins Fifteen Other States Without an Execution in 5 Years, Death Penalty Info. Ctr. (July 18, 2023), https://deathpenaltyinfo.org/ohio-joins-fifteen-other-states-without-an-execution-in-5-years [https://perma.cc/QM2S-UFXT] [hereinafter 5 Years Without the Death Penalty].
[36] Id.
[37] Gov. Mike DeWine issues three execution reprieves, Spectrum News (June 20, 2025 4:15PM ET), https://ny1.com/nyc/bronx/news/2025/06/20/gov–mike-dewine-execution-reprieves [perma.cc/ZK2R-P4P4].
[38] 5 Years Without the Death Penalty, supra note 35.
[39] Ohio Governor Says State Cannot Obtain Lethal-Injection Drugs, Reschedules Upcoming Execution, Death Penalty Info. Ctr. (Aug. 1, 2019), https://deathpenaltyinfo.org/ohio-governor-says-state-cannot-obtain-lethal-injection-drugs-reschedules-upcoming-execution [perma.cc/U8TZ-QBRH] [hereinafter Upcoming Execution Rescheduled]
[40] Some Medical Supply Manufacturers Ban Use of IV Equipment in Lethal Injection Executions, Death Penalty Info. Ctr. (Sep. 15, 2023), https://deathpenaltyinfo.org/some-medical-supply-manufacturers-ban-use-of-iv-equipment-in-lethal-injection-executions [perma.cc/D5KN-PUC8].
[41] Antonio, supra note 11.
[42] Sherry F. Colb, The Dilemma of Humane Execution and Humane Slaughter, Verdict | Legal Analysis and Commentary from Justia (May 21, 2014), https://verdict.justia.com/2014/05/21/dilemma-humane-execution-humane-slaughter [https://perma.cc/E6JT-DKLR]
[43] Id.
[44] Constitutionality of the Death Penalty in America, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/facts-and-research/background/history-of-the-death-penalty/constitutionality-of-the-death-penalty-in-america [perma.cc/8YYW-UKGK] (last visited Nov. 9, 2025).
[45] Id.
[46] See generally, Louis D. Bilionis, The Unusualness of Capital Punishment, 26 Ohio N. Univ. L. Rev. 601, (2000).
[47] Broken Promises: How a History of Racial Violence and Bias Shaped Ohio’s Death Penalty, Death Penalty Info. Ctr. (May 14, 2024), https://deathpenaltyinfo.org/research/analysis/reports/special-reports/broken-promises-ohio-racial-justice-report [perma.cc/U9CG-PUTY] [hereinafter Broken Promises].
[48] Id.
[49] Id.
[50] Id.
[51] Bilionis, supra note 46, at 67.
[52] See generally, John Bronsteen & Jonathan S. Masur, The Overlooked Benefits of the Blackstone Principle, 128 Harv. L. Rev. F. 289, (2015); 4 William Blackstone, Commentaries *358
[53] Id.
[54] Innocence & Wrongful Convictions, Ohioans to Stop Executions, https://otse.org/issues-old/innocence-wrongful-convictions/ [perma.cc/XX76-L7NS] (last visited Nov. 9, 2025).
[55] Id.
[56] Id.
[57] Id.
[58] Conditions on Death Row, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/death-row/conditions-on-death-row [https://perma.cc/WH6T-BCGU] (last visited Nov. 9, 2025).
[59] Upcoming Execution Rescheduled, supra note 39.
[60] DPIC Analysis, supra note 28.
[61] Id.
[62] Valle v. USA, Report on Admissibility and Merits, Case 13.339, Inter-Am. Comm’n H.R., Report No. 453/21, OEA/Ser.L/V/II, doc. 467 (2021).
[63] DPIC Analysis, supra note 28.
[64] H.B. 36, supra note 9.
[65] Chandler, supra note 1.
[66] Call to Ban Nitrogen Gas Executions, supra note 10.
[67] Jamie Fellner & Sarah Tofte, So Long as They Die, Hum Rts. Watch (Apr. 23, 2006), https://www.hrw.org/report/2006/04/23/so-long-they-die/lethal-injections-united-states [perma.cc/8F3T-2Z8Q].
[68] The Case Against the Death Penalty, Am. Civ. Liberties Union (Dec. 11, 2012), https://www.aclu.org/documents/case-against-death-penalty [perma.cc/C2TZ-9SEL] [hereinafter The Case Against the Death Penalty].
[69] From Slavery to Segregation, Equal Just. Initiative, https://segregationinamerica.eji.org/report/from-slavery-to-segregation.html [https://perma.cc/BZE5-EG3D] (last visited Nov. 9, 2025).
[70] The Case Against the Death Penalty, supra note 68.
[71] The Death Penalty and the Myth of Closure, Death Penalty Info. Ctr. (Jan. 19, 2021), https://deathpenaltyinfo.org/the-death-penalty-and-the-myth-of-closure [https://perma.cc/LA94-BKDU].
[72] Deterrence, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/policy/deterrence [https://perma.cc/J5FY-HNKS] (last visited Nov. 9, 2025).
[73] Id.
[74] Id.
[75] Murder Rate of Death Penalty States Compared to Non-Death Penalty States, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/facts-and-research/murder-rates/murder-rate-of-death-penalty-states-compared-to-non-death-penalty-states [https://perma.cc/9MLD-7VZW] (last visited Nov. 9, 2025) [hereinafter Murder Rate of Death Penalty States].
[76] Studies on Deterrence, Debunked, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/policy/deterrence/discussion-of-recent-deterrence-studies [https://perma.cc/HPK6-M3KH] (last visited Nov. 9, 2025).
[77] The Closure Myth: How the death penalty fails victims’ families, Equal Just. USA, https://ejusa.org/wp-content/uploads/EJUSA-DP-factsheet-victims.pdf [https://perma.cc/YR3R-WL48] (last visited Nov. 9, 2025).
[78] Sarah Donaldson, Executions stand still in Ohio, but the death penalty debate persists, Statehouse NEWS BUREAU (Apr. 18, 2025), https://www.statenews.org/government-politics/2025-04-18/executions-stand-still-in-ohio-but-the-death-penalty-debate-persists [https://perma.cc/RF79-7GCN].
[79] Id.
[80] Id.
[81] Id.
[82] Spectrum News, supra note 37.
[83] Amnesty Int’l, supra note 13.
[84] Bella Sasselli, Facts About the Death Penalty — Does the Death Penalty Cost Less Than Life Without Parole?, Death Penalty Info. Ctr., (July 9, 2025), https://deathpenaltyinfo.org/dpi-series-facts-about-the-death-penalty-does-the-death-penalty-cost-less-than-life-without-parole [https://perma.cc/3R4M-2JWH].
[85] Murder Rate of Death Penalty States, supra note 75.
[86] Sasselli, supra note 84.
[87] Ohioans to Stop Executions, https://otse.org/ [https://perma.cc/8TD6-YV8B] (last visited Nov. 9, 2025).
[88] Id.
[89] Id.
[90] Id.
[91] Id.
[92] Id.
