Credit: Maria Oswalt via unsplash

Nitrogen Gas Execution 

By Emily Cleal-Bramley

The moral implications of Alabama’s new method of capital punishment.

Around half of US states still have death penalty laws. Methods of execution range from electrocution and lethal injection to gas chambers, hanging and even firing squads. More recently, execution via nitrogen induced hypoxia has been carried out in Alabama.

Kenneth Eugene Smith was originally scheduled to be put to death with lethal drugs in November 2022. However, staff at the facility inserted one intravenous line, but two lines were required to administer the lethal injection.  The execution was called off after they repeatedly attempted for 60 minutes to insert the second IV, to no avail. Smith – who was convicted of the murder-for-hire of a preacher’s wife in 1988 – was eventually executed using nitrogen induced asphyxiation on Thursday 25 January 2024. 

The Independent reports that Alabama Attorney General Steve Marshall, speaking at a news conference the day following Smith’s execution, stated that a further 43 more death row inmates have elected to die by nitrogen induced hypoxia. 

It’s a highly controversial method that had never previously been used before by a US state and represents the latest step in the search for a new way to painlessly execute convicted criminals – despite the death penalty’s popularity diminishing over time.

The topic of the death penalty in the US is a controversial one, with strong opinions being voiced from every corner of the political and social spectrum.

A graph, published by Gallup at the end of last year, indicates that since 2000 there has been a downward trend of Americans across the political spectrum who believe the death penalty is applied fairly. 

In 2023 it was reported that only 7 states sentenced people to death, and of those, only 5 states carried out executions. For the first time ever, the number of executions exceeded the number of new death sentences, according to statistics released by the Death Penalty Information Centre.

The popular defence for the death penalty is that it acts as a deterrent for those committing the worst crimes in society. However, this seems to fall through when one examines the crimes that have the possibility of facing the ultimate punishment. According to the Department of Justice, the death penalty can only be imposed on defendants federally convicted of capital offenses – such as murder, treason, genocide, or the killing or kidnapping of a Congressman, the President, or a Supreme Court justice. Rapists, paedophiles and serial sex offenders are notably absent from this list; if the ultimate sentencing is to act as a true deterrent for the most deplorable acts a person is capable of committing, why is it so limited in its application?

Amnesty International, the human rights defence group believes that the death penalty is discriminatory, stating in its website that the death penalty is often used against the most vulnerable in society, including the poor, ethnic and religious minorities, as well as people with mental disabilities. Furthermore, when the death penalty is carried out, it is final. Mistakes that are made cannot be unmade. Since 1973, 196 former death-row prisoners have been exonerated of all charges that resulted in their wrongful death-row convictions, according to the Death Penalty Information Centre.

The Alabama attorney general’s office defended nitrogen hypoxia as a method of execution in court filings saying that the method would “cause unconsciousness within seconds, and cause death within minutes”; the Washington Post reports that the office went on to say that the proposed new method is “the most painless and humane method of execution known to man”.  The president of the American College of Correctional Physicians, Dr. Jeffrey Keller wrote  in an email to the Washington Post that “what effect the condemned person will feel from the nitrogen gas itself, no one knows”. He went on to say that “It is little different than putting a plastic bag over one’s head”.

Notwithstanding the reassurance from the attorney general’s office, Mr Smith’s religious adviser, the Reverend Jeff Hood reported to the Independent that he witnessed Smith “struggle for his life” for 22 minutes as Smith became the first US death row inmate to be executed via then new method– an experience that sounds neither painless nor humane.

According to the Associated Press, Smith’s attorneys argued the new protocol is rife with unknowns and potential problems, going on to suggest that the method violates a constitutional ban on cruel and unusual punishment.

Speaking to BBC Newsday, journalist Lee Hedgepeth said that he had “been to four previous executions and [he’d] never seen a condemned inmate thrash in the way that Kenneth Smith reacted to the nitrogen gas’.

Despite stating in a previous court filing that the new method would cause “unconsciousness in minutes”, Alabama officials seemed to contradict themselves when pressed about the graphic scene that unfolded, with Alabama corrections Commissioner John Hamm saying that Smith’s shaking on the gurney appeared to be involuntary movements. The BBC reported that he went on to say that it “was all expected and was in the side effects that we’ve seen or researched on nitrogen hypoxia”, concluding that “nothing was out of the ordinary from what [they] were expecting.”

“What occurred last night was textbook”, Alabama Attorney general Steve Marshall went on to say the day following the successful execution of Kenneth Smith.

Alabama has faced backlash on an international scale, with Volker Turk, the UN high commissioner for Human Rights, saying in a statement released on Friday 26 January that “I deeply regret the execution of Kenneth Eugene Smith in Alabama despite serious concerns this novel and untested method of suffocation by nitrogen gas may amount to torture, or cruel, inhuman or degrading treatment.”

This came after four UN monitors voiced their concerns on Wednesday 3 January. surrounding the proposed new method of execution.

The panel cited concerns surrounding the possibility of “grave suffering” which execution by pure nitrogen inhalation may cause. They noted in a UN press release published on the 3rd that there was no scientific evidence to prove to the contrary.

They go on to reiterate that the US is party to the convention against torture and is also party to  guarantee that no detainee shall be subjected to medical or scientific experimentation which may be detrimental to their health under other conventions and human rights protections. The press release also states that nitrogen induced hypoxia could be in contravention of these protections.

Appealing to Federal and State authorities in the United States and the State of Alabama, the UN urged authorities to halt this and any other proposed execution using nitrogen induced hypoxia pending a thorough review of the execution protocol.

Smith’s attorneys argued that the mask the state planned to use was not airtight and oxygen seeping in could subject him to a prolonged execution, which would have the potential to leave him in a vegetative state instead of killing him.  Furthermore, The American Veterinary Medical Association wrote in euthanasia guidelines published in 2020 that nitrogen induced hypoxia can be an acceptable method by which to carry out euthanasia under specific conditions for pigs but not for other mammals, because it creates an “anoxic environment that is distressing for some species”, the BBC reports. 

Smith’s legal team also argued that his previous botched execution was traumatic, and involved multiple punctures, resulting in  a formal diagnosis of post-traumatic stress disorder. Given the fact that this is a formally recognised diagnosis, the decision to carry out a reputedly cruel method of execution in this case seems a controversial one.

In an interview given to the Guardian mere days prior to his execution, Smith remarked that one of his personal fears about his upcoming ordeal was that he was going to “drown on [his] own vomit, and [his] wife will have to sit there and watch” if he threw up in the mask. He said “if I do, brother, nobody’s gonna help me.” 

The human rights group, Amnesty International also have been drawn into these events. Justin Mazzola, an Amnesty International USA researcher, said in a press release published earlier this month that “it’s shameful that Governor Ivey decided to proceed and take Kenneth Smith’s life … because of the many concerns in his case as well as the alarm raised by UN experts on the new, untested execution method”. 

The condemnation faced by Alabama for using the method of nitrogen induced hypoxia stretches all the way to the White House, with White House press secretary, Karine Jean-Pierre, condemning the execution, saying that “…it is very troubling to us as an administration. It is very troubling to us here at the White House”.


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