In federal systems, states frequently replicate policies from others, striving for innovation. However, political scientist David Schultz warns that such imitation often results in ineffective solutions. He notes that states become “creatures of me-tooism,” replicating initiatives without proper evaluation. This applies to all policy areas, including the death penalty.

Historically, adopting new execution methods by one state triggers others to follow. For instance, Louisiana seeks to adopt Alabama’s nitrogen hypoxia-based execution approach, despite its flaws. Courts should halt such adoption until its efficacy is proven.

The pattern of imitation in execution methods dates back to the electric chair in 1888. New York was the first to use it, motivated by a vision of modernization. However, when New York employed the electric chair in 1890, it resulted in a gruesome event for William Kemmler. Nevertheless, Ohio, Massachusetts, New Jersey, and Virginia soon followed, making electrocution the predominant execution method in the U.S.

Similarly, lethal injection mirrored this trend. In 1977, Oklahoma enacted lethal injection laws, with Texas conducting the first execution via this method five years later. Quickly, other states adopted it. Now, nitrogen hypoxia represents the latest pattern. First legalized in Oklahoma in 2015, it is now accepted in Alabama, Arkansas, Louisiana, and Mississippi.

The U.S.’s inaugural nitrogen hypoxia execution occurred in Alabama in January 2024, involving Kenneth Smith. However, the execution was troubling, with Smith experiencing severe convulsions. Louisiana adopted this execution method afterward, planning to execute Todd Wessinger, who cites the “substantial risk of serious harm” due to severe air hunger as grounds for his legal challenge. This suit explains how Wessinger experiences “intensely distressing suffocation sensation” before losing consciousness.

Wessinger’s legal team criticizes Louisiana for copying Alabama’s problematic protocol, disregarding other options. His evidence includes seven flawed executions in Alabama and the Eleventh Circuit Court of Appeals’ recognition of risks inherent in Alabama’s protocol.

This case exemplifies Schultz’s criticism of states as “factories of replication,” rather than “laboratories of innovation.” The matter at hand is urgent, as replicating these policies raises ethical concerns. Todd Wessinger’s execution demands careful judicial scrutiny, as it risks perpetuating a hazardous policy.

Austin Sarat, author of this analysis, holds the William Nelson Cromwell Professorship in Jurisprudence and Political Science at Amherst College.