Jan 10, 2024 - Politics & Policy

Alabama inmate will be first person in U.S. executed via nitrogen gas

A photo of an empty room with windows for interactions

Photo: U.S. District Court for the Middle District of Alabama

An inmate in Alabama will be the first person executed with nitrogen gas, a federal judge ruled on Wednesday.

Why it matters: This untested hypoxia execution method, the first of its kind in the U.S., could prove to be "painful and humiliating," human rights experts said.

  • "Hypoxia is a state in which oxygen is not available in sufficient amounts at the tissue level to maintain adequate homeostasis," per research in the National Institutes of Health.

Background: Kenneth Eugene Smith was convicted of capital murder and sentenced to death in 1996.

  • A jury sentenced him to life without parole in an 11-1 vote, but a trial judge overruled the jury's recommendation and sentenced him to death.

Context: Smith filed a "method-of-execution action" in 2022 that challenged Alabama's lethal injection protocol. In it, he said nitrogen hypoxia was his preferred alternative, a court document said.

  • Smith's request was denied, but his Alabama Department of Corrections officials couldn't access his veins for the lethal injection.
  • A nitrogen hypoxia execution protocol was approved by John Hamm, Alabama Department of Corrections commissioner, in August.
  • Alabama Gov. Kay Ivey (R.) set Smith's execution for a 36-hour time frame Jan. 25-26.

Threat level: United Nations human rights experts warned that the execution method is untested and could "subject him to cruel, inhuman or degrading treatment or even torture."

  • The execution method is administered via a mask and breathing tube to control the gas, which slowly deprives the person of oxygen, according to the Death Penalty Information Center.
  • "The State has not provided Mr. Smith or the public with a copy of the full, unredacted protocol, raising concerns about Mr. Smith serving as a "test subject" for the novel execution method," per the American Bar Association.

The bottom line: Smith has objected to the nitrogen hypoxia execution.

  • Improper mask placement or size "could result in the infiltration of oxygen inside the mask, thereby increasing time to unconsciousness and increasing the risk of dire consequences such as a vegetative state, a stroke, or the painful sensation of suffocation," Smith said, per a court filing.
  • He requested to wear a custom-fit mask, to be allowed to say prayers and final statements before wearing the mask and to be provided a mechanism to remove carbon dioxide from the mask, among other measures.
  • "Alternatively, Smith alleges the Defendants should execute him by firing squad," a court filing said.

Go deeper: Death penalty opinions shift as Tennessee reworks protocol

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