Why America's first nitrogen gas execution has experts up in arms

A US court has given the go-ahead for a prisoner to be executed using nitrogen gas. This would be the first time in America such a method has been used to execute an inmate. The lawyers of the man on death row have claimed the method is ‘cruel and experimental.’ Let’s take a closer look: What happened? US district judge R Austin Huffaker rejected Kenneth Eugene Smith’s request for a preliminary injunction to stop his scheduled 25 January execution. Smith, 58, was one of two men convicted of the murder-for-hire of a preacher’s wife that rocked Alabama in 1988. Prosecutors said Smith and the other man were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance. He is scheduled to be executed in Alabama.

Smith, 58, is one of only two people alive in the US to have survived an execution attempt.

Alabama botched his previously scheduled lethal injection in November 2022. That proceeding witnessed multiple attempts to insert an intravenous line failing. [caption id=“attachment_13601592” align=“alignnone” width=“640”] Kenneth Smith is one of only two people alive in the US to have survived an execution attempt. AP[/caption] “I was strapped down, couldn’t catch my breath. I was shaking like a leaf. I was absolutely alone in a room full of people, and not one of them tried to help me at all, and I was crying out for help. It was a month or so before I really started to come back to myself,” Smith told NPR. The state’s plans call for placing a respirator-type face mask over Smith’s nose and mouth connected to a cylinder of nitrogen. This would replace breathable air with nitrogen – thus causing him to die from lack of oxygen. Why is this controversial? Because execution via nitrogen gas is a new and untested method. First, let’s take a brief look at nitrogen. As per Forbes, the inert gas comprises around 80 per cent of our air. The gas is generally harmless but can prove deadly to humans in high doses.

While such an execution should be painless in theory, problems could arise.

For example, the nitrogen dose could not be high enough, a mask was not correctly placed on an inmate or gasses were improperly mixed. We also don’t know how humans deal with nitrogen hypoxia. We get most information from suicides and industrial accidents involving it and suicides. However, experts are against using the gas to put down animals. They say some animals display pain and suffering before passing out. Most US executions are carried out using lethal doses of a barbiturate, but some states have struggled to obtain the drugs because of a European Union law banning pharmaceutical companies from selling drugs that can be used in executions to prisons. While three states — Alabama, Mississippi and Oklahoma — have authorised nitrogen hypoxia as an execution method, none has used it thus far. This would be the first time a judicial execution has been carried out anywhere in the world using asphyxiation with an inert gas, according to capital punishment experts. United Nations experts urged US authorities to halt the planned execution saying the untested method may subject him to “cruel, inhuman or degrading treatment or even torture.” [caption id=“attachment_13237782” align=“alignnone” width=“640”] United Nations experts urged US authorities to halt the planned execution saying the untested method may subject him to “cruel, inhuman or degrading treatment or even torture.”[/caption] Four UN human rights special rapporteurs said the new execution method would likely violate an international treaty, to which the US is a party, which bans torture and other cruel, inhuman or degrading punishment. As per Forbes, experts have also cautioned Smith could suffer a “painful and humiliating death.”

They added that there is “no scientific evidence” proving it will not cause “grave suffering.”

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Joel Zivot, an expert on lethal injection and associate professor of anesthesiology at Emory University, told The Independent that although nitrogen hypoxia sounds scientific, it is not actually a medical term. Zivot says the term “nitrogen gas execution” would be more accurate. “No one cares, seemingly, about the experience of the person that is dying, even though that’s what the law turns on,” said Dr Zivot. “This whole thing is about the witness experience. How does it look? They think that nitrogen will kill people in a way that outwardly looks pretty mild. I’m not so sure.” Smith’s lawyers have said the untested gassing protocol likely violates the US Constitution’s ban on “cruel and unusual punishments”, and have argued a second attempt to execute him by any method is unconstitutional. They also argued the new protocol is riddled with unknowns and potential problems. Smith’s attorneys noted in court filings that the American Veterinary Medical Association wrote in 2020 euthanasia guidelines that nitrogen hypoxia is an acceptable method of euthanasia for pigs but not for other mammals because it could create an “anoxic environment that is distressing for some species.” ‘History of being untrustworthy’ Smith’s attorneys also argued that the gas mask, which sits over the nose and mouth, would interfere with Smith’s ability to pray aloud or make a final death chamber statement. Smith himself appears to be horrified at the looming prospect. “I’m still carrying the trauma from the last time. I’m being treated for PTSD, and I struggle daily. So when I got this date, my level of anxiety this time was not even close to what I faced last time. Everybody is telling me that I’m going to suffer. Well, I’m absolutely terrified,” he told NPR. The Reverend Dr Jeff Hood, Smith’s spiritual adviser who plans to be with Smith during the execution, said he was troubled by the ruling. “Horror is an understatement. The State of Alabama now has the permission of a federal court to suffocate its citizens,” Hood said. So new is the method that authorities are asking Hood to remain three feet away from Smith at the time of the execution. The document states that the hose supplying the nitrogen to Smith could slip off his face – thus flooding the area with the odourless, tasteless, invisible and potentially lethal gas. “They’re asking for my trust,” Dr Hood told The Independent. “The problem is they have a history of being untrustworthy.”

In 2022, Alabama witnessed three failed lethal injection attempts.

“I can tell you without a doubt that the state of Alabama is the most unprofessional, unprepared buffoonery that I have ever seen. The execution chamber looks like a medical procedure in other states. In Alabama, it looks like a torture chamber.” Worse, Alabama is being secretive about just how it intends to carry out the execution. Zivot said studies show nitrogen gas, when used to deprive humans of oxygen, causes seizures in 80 per cent of subjects “Killing inmates lawfully, killing them constitutionally seems to be a concept that is elusive to members of the (Alabama Department of Corrections) and the courts.” “This is just a gross display of serious and abject incompetence. This is the bloodlust of these people, who are willing to kill other people, just so they can kill Kenny Smith,” Dr Zivot told the newspaper. Hood called Alabama’s reluctance to shed light on its protocols a “tyranny of vagueness”. “They are able to say very little so they can do whatever they want to do.” “It’s a slapdash thing,” Deborah Denno, a professor at Fordham Law School told NBC. “The states are so desperate to keep executing people that they come up with a method and say, ‘this is foolproof,’ and then provide so few details.” “All the parts we would need to know most about are redacted,” added Denno. “Where are they getting the gas? That’s very important. Even if you don’t want to mention the manufacturer, you want to know, as we do with our lethal injection drugs: Is the gas coming from a legitimate source? Is it being delivered to the Department of Corrections or is it being made somewhere?” But Alabama attorney general Steve Marshall praised Wednesday’s decision, saying it moves the state closer to “holding Kenneth Smith accountable for the heinous murder-for-hire slaying” he was convicted of committing. “Smith has avoided his lawful death sentence for over 35 years, but the court’s rejection today of Smith’s speculative claims removes an obstacle to finally seeing justice done,” his statement added.

A source told NBC Marshall is resolute in seeing the execution carried out.

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Marshall has been emphasising the need to develop this method of execution before his term of office ends in January 2027. “This new method may prove to be more efficient for the government’s use and has the tangential benefit of being painless,” the source claimed. “Mrs Sennett’s death, of course, was not.” ‘Not guaranteed painless death’ Huffaker acknowledged that execution by nitrogen hypoxia is a new method but noted that lethal injection — now the most common execution method in the country — once was also new. He said while Smith had shown the theoretical risks of pain and suffering under Alabama’s protocol, those risks don’t rise to an unconstitutional violation. “Smith is not guaranteed a painless death. On this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts both cruel and unusual punishment rendering it constitutionally infirm under the prevailing legal framework,” Huffaker wrote in the 48-page ruling. Huffaker also wrote that there wasn’t enough evidence to find the method “is substantially likely to Wednesday’s ruling followed a December court hearing and legal filings in which attorneys for Smith and Alabama gave diverging descriptions of the risks and humaneness of death from nitrogen gas exposure. The state attorney general’s office had argued that the deprivation of oxygen would “cause unconsciousness within seconds, and cause death within minutes.” Its court filings compared the new execution method to industrial accidents in which people passed out quickly and died after exposure to nitrogen gas. cause Smith superadded pain short of death or a prolonged death.” Alabama’s prison system agreed to minor changes to settle concerns that Smith’s spiritual adviser would be unable to minister to him before the execution. The state wrote in a court filing that the adviser could enter the execution chamber before the mask was placed on Smith’s face to pray with him and anoint him with oil. The murder victim Sennett was found dead on March 18, 1988, in the home she shared with her husband Charles Sennett Sr in Alabama’s northern Colbert County. The coroner testified the 45-year-old woman had been stabbed repeatedly. Her husband, then the pastor of the Westside Church of Christ, killed himself when the murder investigation focused on him as a suspect, according to court documents. Smith’s initial 1989 conviction was overturned on appeal. He was retried and convicted again in 1996. The jury recommended a life sentence by a vote of 11-1, but a judge overrode the recommendation and sentenced Smith to death. Alabama no longer allows a judge to override a jury’s decision on death penalty decisions. John Forrest Parker, the other man convicted in the case, was executed in 2010. With inputs from agencies