States with Death Penalty Delays Look to Alabama’s Example

This article was published in the Amicus ALJ newsletter.

On January 25th, Kenneth Eugene Smith received a fatal dose of nitrogen gas. Smith writhed and thrashed against restraints for approximately two to four minutes followed by a five-minute period of heavy breathing, according to witnesses. His death was the first execution by nitrogen hypoxia, which the UN called an ‘experimental untested method’ that may amount to torture. 1 Despite international pushback and a drawn-out execution, states where the death penalty has been stalled may follow their example and adopt nitrogen hypoxia as an alternative to lethal injection.

In recent years, lethal injection has led to a string of botched executions across the US, including one failed execution that Kenneth Smith experienced in 2022 prior to his execution last month. The unreliable use and escalating high cost of lethal injection drugs have led to significant delays in administering capital punishment. In an effort to find a lower cost and more reliable execution procedure, governments are taking inspiration from Alabama.

Lawmakers and the Attorney General in Ohio, a state where no one has been put to death for five years, introduced a bill in January that would permit asphyxiation by nitrogen as a method of execution. Similarly, the Governor in Louisiana has said they are looking at new execution methods to reinstate capital punishment. A lawmaker has introduced a bill in Nebraska to permit the procedure. The last execution in Louisiana and Nebraska was in 2010 and 2018, respectively.

The bill in Ohio was introduced just five days after Smith’s execution. Despite the execution lasting a total of 22 minutes, Alabama’s attorney general, Steve Marshall, called it a ‘textbook’ ‘proven’ method of execution, encouraging other states to take Smith’s execution as an example. ‘Alabama has done it, and now so can you,’ Marshall said. States where death penalty remains active are also adopting and considering the method. Oklahoma and Mississippi – two states that have put to death inmates in the last five years – already have laws authorising its use.

Lawmakers across the US roll out legislation despite criticism from health professionals, who claim nitrogen hypoxia likely causes significant suffering. Marshall’s office said nitrogen gas is the ‘the most painless and humane method of execution known to man’ as inmates will be unconscious almost instantaneously. This description, strikingly contrasts Smith’s execution, where witnesses saw Smith struggling for several minutes. The procedure of nitrogen asphyxiation mandates a mask being placed over the inmate’s nose and mouth to replace breathable air with pure nitrogen causing them to die from lack of oxygen.2 Dr. Jeffrey Keller, president of the American College of Correctional Physicians wrote that the procedure is ‘little different than putting a plastic bag over one’s head.’3

In his last words Kenneth Smith said, “Tonight, Alabama caused humanity to take a step backward.” Smith’s words ring especially true as other states look to the Yellowhammer state in adopting the execution method.

Footnotes

1 UN News, ‘Nitrogen gas has never been used in the United States to execute human beings’ (Twitter, 16 January 2024) < https://twitter.com/UN_News_Centre/status/1747375802130354481?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7C twterm%5E1747375802130354481%7Ctwgr%5E8111260e7f588ca2762717fce0e538900386e6a2%7Ctwcon%5Es1_c10&re f_url=https%3A%2F%2Fd-1142148291024434390.ampproject.net%2F2312191621000%2Fframe.html> accessed 25 January 2024.

2 Alabama Department of Corrections Execution Procedures: Lethal Injection Nitrogen Hypoxia Electrocution August 2023.

3 Chandler Kim, ‘Alabama calls nitrogen execution method painless and humane, but critics are raising doubts’ The Washington Post (Washington D.C., 23 January 2024).

News sourced from:

https://www.al.com/news/2024/01/un-alarmed-at-alabamas-nitrogen-execution-of-kenneth-eugene-smith-cruel-inhumantorture.html https://eji.org/news/alabama-executes-kenny-smith-using-nitrogen-suffocation/ https://www.nytimes.com/2024/01/30/us/death-penalty-alabama-ohio.html https://www.washingtonpost.com/nation/2024/01/25/kenneth-smith-nitrogen-hypoxia-death-penalty/ https://apnews.com/article/death-penalty-nitrogen-nebraska-alabama76bba87753bc1ab20b0bc50a09991ec8#:~:text=Nebraska's%20current%20sole%20method%20of,oxygen%20to%20tissue %20and%20cells. https://deathpenaltyinfo.org/states-landing https://deathpenaltyinfo.org/news/the-world-is-watching-witnesses-report-kenneth-smith-appeared-conscious-shook-andwrithed-during-first-ever-nitrogen-hypoxia-execution