US to see its first nitrogen gas execution: Why is this method controversial?

Alabama in the United States has got the go-ahead for its plan to conduct the first execution in the country with nitrogen gas after the supreme court declined to halt the move. The supreme court justices denied Alabama death row inmate Kenneth Smith’s request to stay his execution, scheduled for today, and declined to hear his legal challenge contending that a second execution attempt by Alabama - after the first failed attempt caused him severe trauma — would violate the US Constitution’s Eighth Amendment protections against cruel and unusual punishment. With this, Alabama will go ahead with one of its more contentious planned executions — via nitrogen hypoxia, in which a person breathes only nitrogen and dies from a lack of oxygen. As the American state plans for this death sentence, we take a closer look at what it is and why has it been dubbed as controversial and dangerous. What is nitrogen hypoxia? Execution through nitrogen hypoxia would cause death by forcing the inmate to breathe pure nitrogen, depriving him or her of the oxygen needed to maintain bodily functions. Nitrogen, a colourless, odourless gas, makes up about 80 per cent of the air we breathe. It isn’t deadly until it is separated from oxygen. The theory behind this form of execution is that changing the composition of the air to 100 per cent nitrogen will cause the person to lose consciousness, and then die from lack of oxygen. This method is being considered as an alternative to more common forms of capital punishment, like lethal injection and electrocution, which are the two methods used most prevalently across the US, according to the Death Penalty Information Center. Besides Alabama, Mississippi and Oklahoma have authorised nitrogen hypoxia as an execution method. However, no state has used it so far and Alabama’s execution today (25 January) will be the first time that such an execution will be carried out anywhere, according to capital punishment experts. [caption id=“attachment_13653832” align=“alignnone” width=“640”] Alabama’s lethal injection chamber at Holman Correctional Facility in Atmore, Alabama. The US state, if all things go as planned, will carry out the first ever nitrogen gas execution today. File image/Reuters[/caption] According to Alabama state officials, the execution will be carried out in a specific manner. First, the person on death row will be strapped to the gurney in the execution chamber and then a “NIOSH-approved type-C full facepiece supplied air respirator” will be placed on their face. Following the warden reading the death sentence, 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. What’s the legal holdup to this form of execution? While this process sounds fairly simple, there are some, including the lawyers of Kenneth Smith, the man who is facing this form of execution, who argues otherwise. Fifty-eight-year-old Kenneth Smith, who was convicted of the murder-for-hire of a preacher’s wife in 1988, was sentenced to death and in 2022, he was strapped down to a gurney to be executed via lethal injection. However, he survived the attempt — becoming only the second person ever in the US to survive an execution. [caption id=“attachment_13653822” align=“alignnone” width=“640”] Kenneth Eugene Smith, convicted for a murder-for-hire committed in 1988, will be executed in the US state of Alabama by asphyxiation using pure nitrogen. File image/Reuters[/caption] It was then decided that he would be executed via nitrogen hypoxia and this is where his lawyers intervened and took the matter to court, arguing that the state was seeking to make him the “test subject” for a novel execution method. They also argued before the courts that the mask that the state intends to use isn’t air tight and the oxygen that could seep in could actually subject him to a prolonged execution, or even leave him in a vegetative condition. A medical expert testifying for Smith also stated that this method could cause Smith to choke on his own vomit, leading to his death. Speaking to The Guardian from the Holman correctional facility, where the execution is set to take place, Smith said, “They haven’t given me a chance to heal. I’m still suffering from the first execution and now we’re doing this again. They won’t let me even have post-traumatic stress disorder – you know, this is ongoing stress disorder.” Smith’s lawyers have also argued that it is unconstitutional for the state to make a second attempt to execute him and that its plan violates the ban on cruel and unusual punishment and at least merits more scrutiny before it is used. However, the US supreme court has denied Smith’s appeal and he is due to be executed during a 30-hour window starting Thursday. Is nitrogen hypoxia truly cruel? While Alabama state authorities call the execution through nitrogen a painless and a more humane method of execution, there are others who argue otherwise. Joel Zivot, an associate professor in anaesthesiology at Emory University’s School of Medicine, has been quoted as saying, “What is known is that nitrogen gas, under certain circumstances, can cause death. But the terms of how it’s going to exactly work is still unclear.” According to Zivot, nitrogen hypoxia could cause Smith to suffer an intensely painful death. While speaking to USAToday, he said, “This will not be a death that will be discreet. It may be prolonged. I think that there will be a good chance there will be some suffering.” “The nitrogen gas could induce a seizure. If the gas is administered through a mask, it could induce Smith to vomit, causing him to choke to death.” And it’s not just Zivot who has raised concerns about nitrogen hypoxia. The American Veterinary Medical Association wrote in 2020 euthanasia guidelines that nitrogen hypoxia is not an acceptable euthanasia method for most mammals because the experience of oxygen deprivation “is distressing.” United Nations experts have said the new execution method, could cause “grave suffering” and “a painful and humiliating death” that would likely violate an international treaty, to which the US is a party, which bans torture and other cruel, inhuman or degrading punishment. The UN human rights office also stated that they believed that nitrogen execution would amount to torture and violate US commitments under international law. 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,” Ravina Shamdasani, spokesperson for the UN Human Rights Office, told a press briefing in Geneva. Why are US states looking at new execution methods? The issue of using nitrogen as an execution method has arisen, as an increasing number of US states are thinking of alternatives. This is because numerous states using the lethal injection have encountered various problems with the execution method, including difficulty finding usable veins, needles becoming disengaged or problems sourcing or using the lethal chemicals. Interestingly, nitrogen hypoxia isn’t the only method being considered. South Carolina passed a law allowing a firing squad in 2021, prompted by an inability to obtain lethal injection drugs. The state developed protocols and was preparing to use the firing squad before a legal challenge that it and the electric chair are cruel and unconstitutional. Electrocution, hanging and other forms of lethal gas are other methods of execution in different US states. With inputs from agencies