As lethal injection drugs have become harder to come by, there have been far fewer executions across the country according to the Death Penalty Information Center.
Stephen Bright, the former president of the Southern Human Rights Center says, "Outside the South, there really isn't any death penalty anymore."
But the states committed to the practice have scrambled to implement alternative methods — methods critics call primitive and draconian.
Kenneth Eugene Smith is set to be executed by nitrogen hypoxia — a method in which the inmate is forced to breathe pure nitrogen while being deprived of oxygen.
In a 11th Circuit Court of Appeals hearing, Kenneth Eugene Smith's attorney Robert Grass said, "Mr. Smith's executions by nitrogen hypoxia would constitute cruel and unusual punishment."
If the execution is carried out, Smith will be the first person in U.S. history to be put to death in this manner.
Robin Maher is the executive director of the Death Penalty Information Center.
"We don't know what is going to happen. And I don't think even Alabama officials know what's going to happen. It seems to me that there are just too many risks with an untested, unproven method of execution for Alabama to move forward right now," Maher said.
In court documents, Smith's attorney says there is a "substantial risk of a persistent vegetative state, stroke or suffocation."
The state of Alabama disagrees. In that same 11th Circuit Court of Appeals hearing, Alabama Solicitor General, Edmund G. Lacour Jr. said, "Alabama's adopted the most painless and humane method of execution known to man."
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Kenneth Eugene Smith is now awaiting an appeals court's decision to determine if he will be become the first person executed by nitrogen gas.
The state says the method has been used in dozens of suicides and Kenneth Smith has even requested its use in the past as an alternative to lethal injection.
Alabama is one of three states, along with Oklahoma and Mississippi, that has authorized the use of nitrogen gas to execute prisoners.
Five states — Idaho, Mississippi, Utah, Oklahoma and South Carolina — have re-introduced firing squads as an authorized method of execution.
"We have legislators that are struggling to find a way to conduct these executions in a way that also sits comfortably with the American public," Maher said.
The American public's opinion has shifted dramatically on capital punishment.
Some point to wrongful convictions. The Death Penalty Information Center says at least 196 people sentenced to death in the U.S. have been exonerated since 1973.
Maher added, "Most Americans believe the death penalty is administered unfairly. More believe unfairly, than fairly."
The number of executions in recent years reflects the change. Nationwide, there were 24 executions last year — the ninth consecutive year with fewer than 30 total.
Stephen Bright represented dozens of death row inmates.
Bright said, "When I first went down, I mean we were like medics on a battlefield. We were just running from case to case in person ... trying to keep them from getting executed."
Now, 37 states have abolished executions entirely or not carried one out in more than a decade.
"I don't see us ever going back to where we were before, to where 300 people a year were sentenced to death. That's just not going to happen," Bright added.
Only five states executed people in 2023 and Florida and Texas accounted for more than half (58%) of the year's total.
