February 24, 2024
Risks of Alabama’s untested execution method

On Jan. 25, convicted killer and Alabama native Kenneth Eugene Smith is set to become the first inmate in U.S. history to be executed by means of nitrogen hypoxia, a method that Smith’s attorneys refer to as “experimental” and one recently admonished by the United Nations.But what exactly is nitrogen hypoxia, and how does it work? What is nitrogen hypoxia?Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving them of the oxygen needed to maintain bodily functions.How does it work?Nitrogen makes up 78% of the air inhaled by humans and is harmless when inhaled with oxygen. The theory behind the execution method is that changing the composition of the air to 100% nitrogen would cause the inmate to pass out and then die from lack of oxygen.>> WVTM 13 ON-THE-GO: Download our app for freeWhat states have authorized nitrogen hypoxia?In 2018, Alabama became the third state — along with Oklahoma and Mississippi — to authorize the untested use of nitrogen gas to execute prisoners.However, lethal injection remains the state’s primary execution method.How does Alabama plan to carry out the process?A mask will be placed over Smith’s face, through which he will breathe a lethal dose of nitrogen gas.A team has been holding bi-weekly practice sessions to ensure the process will run smoothly and the mask Smith wears will provide the proper seal, according to the state.After Smith is strapped to the gurney in the execution chamber, the state said in a court filing that it will place a “NIOSH-approved Type-C full facepiece supplied air respirator” — a type of mask typically used in industrial settings to deliver life-preserving oxygen — over Smith’s face.The warden will then read the death warrant and ask Smith if he has any last words before activating “the nitrogen hypoxia system” from another room. The nitrogen gas will be administered for at least 15 minutes or “five minutes following a flatline indication on the EKG, whichever is longer,” according to the state protocol. The Alabama attorney general’s office told a federal judge that the nitrogen gas would “cause unconsciousness within seconds, and cause death within minutes.”>> LAWSUIT: Alabama’s plan for nation’s first execution by nitrogen gas is ‘hostile to religion’Will the process be painful?The state’s experts claim that the level of nitrogen would lead to cardiac arrest within five minutes.They argue Smith should not suffer since the introduction of nitrogen will knock him out in moments.”ADOC’s nitrogen hypoxia protocol will rapidly reduce oxygen inside the mask, cause unconsciousness within seconds, and cause death within minutes,” Marshall said.“Alabama has adopted the most painless and humane method of execution known to man,” Alabama Solicitor General Edmund LaCour told the judges.Is this the same as the gas chamber method?Not exactly. Some states previously used hydrogen cyanide gas, a lethal gas, for executions. The last prisoner to be executed in a U.S. gas chamber was Walter LaGrand, the second of two German brothers sentenced to death for killing a bank manager in 1982 in southern Arizona. It took LaGrand 18 minutes to die in 1999.What are the risks?No state has ever used nitrogen hypoxia to carry out a death sentence, meaning that the process remains untested. Critics have likened it to human experimentation.In fact, the process is reportedly unfit fit to be used on most mammals.The American Veterinary Medical Association’s euthanasia guidelines say inert gas hypoxia is acceptable, under certain conditions, for the euthanasia of chickens, turkeys and pigs but is not recommended for other animals.Smith’s lawyers argue that the state’s plan is flawed and could subject him to a prolonged and unconstitutionally painful execution or leave him in a vegetative state instead of killing him.They also argue that Smith could choke to death on his vomit if he gets sick because it would be inside the mask and could fill his lungs.Are there legal ramifications?The question of whether the execution can proceed will end up before the U.S. Supreme Court.The 11th U.S. Circuit Court of Appeals heard arguments Friday in Smith’s request to block the execution.After the court rules, either side could appeal. Smith has argued that the state’s proposed procedures violate the ban on cruel and unusual punishment. He has also argued that Alabama violated his due process rights by scheduling the execution when he has pending appeals and that the face mask will interfere with his ability to pray.In a separate case, Smith argued it would violate the constitutional ban on cruel and unusual punishment for the state to make a second attempt to execute him after he already survived one execution attempt. Lawyers for Smith on Friday asked the U.S. Supreme Court to stay the execution to consider that question.Are groups opposed to the use of nitrogen hypoxia?Smith’s attorneys say the state is seeking to make him the “test subject” for a novel execution method.The United Nations, as well as many other advocacy groups, are against the use of the gas.“We are alarmed by the imminent execution in the United States of America of Kenneth Eugene Smith, through the use of a novel and untested method — suffocation by nitrogen gas, which could amount to torture or other cruel, inhuman or degrading treatment or punishment under international human rights law,” UN spokesperson Ravina Shamdasani said.The international organization called on the State to not only halt Smith’s execution but to cease pursuing any executions of this nature, citing:”We have serious concerns that Smith’s execution in these circumstances could breach the prohibition on torture or other cruel, inhuman, or degrading treatment or punishment, as well as his right to effective remedies. These are rights set out in two International Human Rights treaties where the United States is bound by — the Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” Shamdasani said.The group previously admonished the state’s decision earlier this month, stating that they “are concerned that nitrogen hypoxia would result in a painful and humiliating death.”Organizations came together on the steps of the State Capital Tuesday with a letter containing tens of thousands of signatures and asked for a halt in the use of the gas Tuesday. Some of the groups included: Advocates4Justice Alabama Arise Alabama CURE Alabama Forward Alabama New South Coalition Alabama Poor People’s Campaign Alabama State Conference of the NAACP Auburn Unitarian Universalist Fellowship BEC2BAMA Birmingham DSA Birmingham Friends Meeting Conservatives Concerned About the Death Penalty Death Penalty Action Episcopal Peace Fellowship Equal Justice USA’s Evangelical Network Faith in Action Alabama Faith Leaders of Color Coalition/flocc Gainesville (Florida) Citizens for Alternatives to the Death Penalty Georgians for Alternatives to the Death Penalty Grace Presbyterian Church of Tuscaloosa Robert S. and Jean E. Graetz Foundation Greater Birmingham Ministries Green County Democrat Joe James, et al –PRESENTE! Journey of Hope — from violence to healing Justice and Mercy for All, Birmingham Kansas Coalition Against the Death Penalty L’chaim! Jews Against the Death Penalty M.A.A.V.I.S. Mary’s House Catholic Worker, Birmingham Mass Incarceration Must End Inc. Nevada Coalition Against the Death Penalty North Alabama Democratic Socialists of America North Alabama Peace Network North Carolina Coalition for Alternatives to the Death Penalty Outreach Team St. Paul UMC Birmingham Patch Adams, MD – The Gesundheit! Institute Project Hope to Abolish the Death Penalty Red Letter Christians Restorative Solutions Restorative Strategies, LLC St Paul UMC, Birmingham Sisters of the Holy Spirit and Mary Immaculate South Carolinians for Alternatives to the Death Penalty South Dakotans for Alternatives to the Death Penalty Southern Poverty Law Center- Alabama State Office turner mccalh & Associates, BC Tuscaloosa Action United Church of Christ Unitarian Universalist Church of Birmingham and Tuscaloosa Unitarian Universalist Fellowship of Montgomery Vine and Fig Tree Community Voiceless Behind Bars Witness to innocence The Woods Foundation Worth RisesWhat is at stake?If the Alabama execution goes forward, other states may seek to start using nitrogen gas.If the execution is blocked by the court or botched, it could halt or slow the pursuit of nitrogen gas as an alternative execution method.Who is Kenneth Eugene Smith?Smith is being executed for the murder-for-hire of Elizabeth Dorlene Sennett in Colbert County woman in 1988.Learn more about his crime here.His execution is set to begin at the Holman Prison in Atmore at 12:00 a.m. on Jan. 25.

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On Jan. 25, convicted killer and Alabama native Kenneth Eugene Smith is set to become the first inmate in U.S. history to be executed by means of nitrogen hypoxia, a method that Smith’s attorneys refer to as “experimental” and one recently admonished by the United Nations.

But what exactly is nitrogen hypoxia, and how does it work?

What is nitrogen hypoxia?

Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving them of the oxygen needed to maintain bodily functions.

How does it work?

Nitrogen makes up 78% of the air inhaled by humans and is harmless when inhaled with oxygen. The theory behind the execution method is that changing the composition of the air to 100% nitrogen would cause the inmate to pass out and then die from lack of oxygen.

>> WVTM 13 ON-THE-GO: Download our app for free

What states have authorized nitrogen hypoxia?

In 2018, Alabama became the third state — along with Oklahoma and Mississippi — to authorize the untested use of nitrogen gas to execute prisoners.

However, lethal injection remains the state’s primary execution method.

How does Alabama plan to carry out the process?

A mask will be placed over Smith’s face, through which he will breathe a lethal dose of nitrogen gas.

A team has been holding bi-weekly practice sessions to ensure the process will run smoothly and the mask Smith wears will provide the proper seal, according to the state.

After Smith is strapped to the gurney in the execution chamber, the state said in a court filing that it will place a “NIOSH-approved Type-C full facepiece supplied air respirator” — a type of mask typically used in industrial settings to deliver life-preserving oxygen — over Smith’s face.

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The warden will then read the death warrant and ask Smith if he has any last words before activating “the nitrogen hypoxia system” from another room. The nitrogen gas will be administered for at least 15 minutes or “five minutes following a flatline indication on the EKG, whichever is longer,” according to the state protocol.

The Alabama attorney general’s office told a federal judge that the nitrogen gas would “cause unconsciousness within seconds, and cause death within minutes.”

>> LAWSUIT: Alabama’s plan for nation’s first execution by nitrogen gas is ‘hostile to religion’

Will the process be painful?

The state’s experts claim that the level of nitrogen would lead to cardiac arrest within five minutes.

They argue Smith should not suffer since the introduction of nitrogen will knock him out in moments.

“ADOC’s nitrogen hypoxia protocol will rapidly reduce oxygen inside the mask, cause unconsciousness within seconds, and cause death within minutes,” Marshall said.

“Alabama has adopted the most painless and humane method of execution known to man,” Alabama Solicitor General Edmund LaCour told the judges.

Is this the same as the gas chamber method?

Not exactly. Some states previously used hydrogen cyanide gas, a lethal gas, for executions. The last prisoner to be executed in a U.S. gas chamber was Walter LaGrand, the second of two German brothers sentenced to death for killing a bank manager in 1982 in southern Arizona. It took LaGrand 18 minutes to die in 1999.

What are the risks?

No state has ever used nitrogen hypoxia to carry out a death sentence, meaning that the process remains untested.

Critics have likened it to human experimentation.

In fact, the process is reportedly unfit fit to be used on most mammals.

The American Veterinary Medical Association’s euthanasia guidelines say inert gas hypoxia is acceptable, under certain conditions, for the euthanasia of chickens, turkeys and pigs but is not recommended for other animals.

Smith’s lawyers argue that the state’s plan is flawed and could subject him to a prolonged and unconstitutionally painful execution or leave him in a vegetative state instead of killing him.

They also argue that Smith could choke to death on his vomit if he gets sick because it would be inside the mask and could fill his lungs.

Are there legal ramifications?

The question of whether the execution can proceed will end up before the U.S. Supreme Court.

The 11th U.S. Circuit Court of Appeals heard arguments Friday in Smith’s request to block the execution.

After the court rules, either side could appeal. Smith has argued that the state’s proposed procedures violate the ban on cruel and unusual punishment. He has also argued that Alabama violated his due process rights by scheduling the execution when he has pending appeals and that the face mask will interfere with his ability to pray.

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In a separate case, Smith argued it would violate the constitutional ban on cruel and unusual punishment for the state to make a second attempt to execute him after he already survived one execution attempt. Lawyers for Smith on Friday asked the U.S. Supreme Court to stay the execution to consider that question.

Are groups opposed to the use of nitrogen hypoxia?

Smith’s attorneys say the state is seeking to make him the “test subject” for a novel execution method.

The United Nations, as well as many other advocacy groups, are against the use of the gas.

“We are alarmed by the imminent execution in the United States of America of Kenneth Eugene Smith, through the use of a novel and untested method — suffocation by nitrogen gas, which could amount to torture or other cruel, inhuman or degrading treatment or punishment under international human rights law,” UN spokesperson Ravina Shamdasani said.

The international organization called on the State to not only halt Smith’s execution but to cease pursuing any executions of this nature, citing:

“We have serious concerns that Smith’s execution in these circumstances could breach the prohibition on torture or other cruel, inhuman, or degrading treatment or punishment, as well as his right to effective remedies. These are rights set out in two International Human Rights treaties where the United States is bound by — the Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” Shamdasani said.

The group previously admonished the state’s decision earlier this month, stating that they “are concerned that nitrogen hypoxia would result in a painful and humiliating death.”

Organizations came together on the steps of the State Capital Tuesday with a letter containing tens of thousands of signatures and asked for a halt in the use of the gas Tuesday. Some of the groups included:

  • Advocates4Justice
  • Alabama Arise
  • Alabama CURE
  • Alabama Forward
  • Alabama New South Coalition
  • Alabama Poor People’s Campaign
  • Alabama State Conference of the NAACP
  • Auburn Unitarian Universalist Fellowship
  • BEC2BAMA
  • Birmingham DSA
  • Birmingham Friends Meeting
  • Conservatives Concerned About the Death Penalty
  • Death Penalty Action
  • Episcopal Peace Fellowship
  • Equal Justice USA’s Evangelical Network
  • Faith in Action Alabama
  • Faith Leaders of Color Coalition/flocc
  • Gainesville (Florida) Citizens for Alternatives to the Death Penalty
  • Georgians for Alternatives to the Death Penalty
  • Grace Presbyterian Church of Tuscaloosa
  • Robert S. and Jean E. Graetz Foundation
  • Greater Birmingham Ministries
  • Green County Democrat
  • Joe James, et al –PRESENTE!
  • Journey of Hope — from violence to healing
  • Justice and Mercy for All, Birmingham
  • Kansas Coalition Against the Death Penalty
  • L’chaim! Jews Against the Death Penalty
  • M.A.A.V.I.S.
  • Mary’s House Catholic Worker, Birmingham
  • Mass Incarceration Must End Inc.
  • Nevada Coalition Against the Death Penalty
  • North Alabama Democratic Socialists of America
  • North Alabama Peace Network
  • North Carolina Coalition for Alternatives to the Death Penalty
  • Outreach Team St. Paul UMC Birmingham
  • Patch Adams, MD – The Gesundheit! Institute
  • Project Hope to Abolish the Death Penalty
  • Red Letter Christians
  • Restorative Solutions
  • Restorative Strategies, LLC
  • St Paul UMC, Birmingham
  • Sisters of the Holy Spirit and Mary Immaculate
  • South Carolinians for Alternatives to the Death Penalty
  • South Dakotans for Alternatives to the Death Penalty
  • Southern Poverty Law Center- Alabama State Office
  • turner mccalh & Associates, BC
  • Tuscaloosa Action
  • United Church of Christ
  • Unitarian Universalist Church of Birmingham and Tuscaloosa
  • Unitarian Universalist Fellowship of Montgomery
  • Vine and Fig Tree Community
  • Voiceless Behind Bars
  • Witness to innocence
  • The Woods Foundation
  • Worth Rises

What is at stake?

If the Alabama execution goes forward, other states may seek to start using nitrogen gas.

If the execution is blocked by the court or botched, it could halt or slow the pursuit of nitrogen gas as an alternative execution method.

Who is Kenneth Eugene Smith?

Smith is being executed for the murder-for-hire of Elizabeth Dorlene Sennett in Colbert County woman in 1988.

Learn more about his crime here.

His execution is set to begin at the Holman Prison in Atmore at 12:00 a.m. on Jan. 25.