Controversial Execution Method Planned for Alabama Death Row Inmate
If Kenneth Eugene Smith is brought to the Alabama death chamber to face execution next week for his role in the 1988 murder-for-hire of a pastor's wife, the state plans to use an untested and untried method to end his life, suffocating him with a stream of nitrogen gas to be delivered through a face mask.
In a federal appeals court Friday, Smith's lawyers sought to block it, arguing that not only have Smith's constitutional rights been violated, but that he could be subjected to an agonizing death and that most of the details surrounding the state's new execution protocol "deserve more scrutiny."
The use of nitrogen gas will be a capital punishment first, even though it has not only been denounced by some medical professionals but also by veterinarians who oppose its use on animals. In 2020, the American Veterinary Medical Association advised against the use of nitrogen gas as a way to euthanize most mammals, calling it "distressing." One of the few uses of nitrogen gas in animal euthanasia is with chickens.
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The use of an untested method in executions has raised concerns about potential human rights violations, according to the United Nations' Office of The High Commissioner for Human Rights. In a statement, they warned that the method "could amount to torture or other cruel, inhuman or degrading treatment or punishment under international human rights law."
Origins of the nitrogen gas execution plan
The scheduled execution of Smith on January 25 has brought attention to a new method that was devised by elected officials rather than scientists. The method was proposed as a way to overcome the increasing obstacles faced by states that relied on lethal injections.
The discussion of using nitrogen gas for state executions first emerged in 2015 when the Oklahoma state legislature became the first to authorize it. This decision was made in response to shortages of the drugs used in lethal injections, which made executions more difficult to carry out. Then-Gov. Mary Fallin signed the legislation into law, stating that if lethal injection became unconstitutional or unavailable, the state could resort to using nitrogen gas.
The idea for this method came from former Oklahoma state Rep. Mike Christian. Christian believed that using nitrogen gas was a "revolutionary" approach and considered it the best alternative to government executions. He highlighted its accessibility, cost-effectiveness, and the state's ability to produce its own nitrogen gas if necessary.
Oklahoma Lawmakers Seek Alternative Method for Death Penalty
Lawmakers in Oklahoma have enlisted the help of a group of professors and individuals who have experienced hypoxia to research and develop an alternative method for carrying out the death penalty. The study, conducted by a team that included former professor Michael Copeland, concluded that induced hypoxia via nitrogen inhalation would be a humane method for execution.
Prior to the vote coming to the floor, the bill went through multiple hearings and lawmakers enlisted the research help of a group of professors and those who had experienced hypoxia — oxygen deprivation — in the past.
Michael Copeland, a former professor at East Central University, was part of a three-person team that assisted the Oklahoma state legislature in conducting a study into how the method would work. He told CBS that this wasn't an unusual request — he said he had "often done pro bono work for the legislature on different criminal justice issues."
A 30-slide PowerPoint was used to present the idea and how it would work during a committee hearing in February 2015. The presentation said the method was derived "by reviewing the scientific, technical and safety literature related to nitrogen and other inert gas inhalation."
Among their conclusions was that "induced hypoxia via nitrogen inhalation would be a humane method to carry out a death sentence." The slideshow credited a 1995 National Review piece and a Slate article from 2014 as helping spur on work around the new method.
In addition to the PowerPoint slides, CBS News also viewed a 14-page document which Copeland claims was just a "rough draft" that was never meant to be published. The document includes similar information and analysis of medical literature on hypoxia from as far back as the 1960s and 1970s.
Former Oklahoma State Senator Supports Use of Nitrogen Gas for Executions
Former Oklahoma state Senator Ervin Yen, an experienced anesthesiologist, has expressed his support for the use of nitrogen gas as a method of execution. Yen, who helped sponsor a bill in 2015, acknowledged the challenge in evaluating the viability of this new method, stating that research on it is not possible.
Yen emphasized that no method of execution is completely without risk. While discussing firing squads, he noted that although the inmate's heart stops after being shot, there is still the potential for lingering consciousness and pain. Yen compared the discomfort caused by wearing a tight-fitting mask to the use of nitrogen gas, stating that it may be uncomfortable but not necessarily classified as pain and suffering.
Despite his support for the use of nitrogen gas, Yen expressed doubt that Oklahoma would ever adopt this method, even as Alabama prepares to do so. However, the move to try nitrogen gas for executions seems to be gaining traction among death penalty proponents. In Nebraska, state Senator Loren Lippincott has introduced a bill to make execution by nitrogen gas an approved method. The outcome of Alabama's use of nitrogen gas may serve as a testing ground for other states considering its inclusion as a method of execution.
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People will wonder afterwards, was that cruel?
"People will wonder afterwards, was that cruel?"
But detractors are also speaking out. Dr. Joel Zivot, an associate professor at Emory University's School of Medicine and an anesthesiologist, expressed serious concerns regarding the execution method in Alabama.
"Alabama has a terrible track record, and so it would seem to be in the interest of the public and in the interest of justice for Alabama to produce its evidence as to why this method of execution is not cruel," Zivot said.
Zivot has filed multiple complaints to the U.N., stating that he fears this execution could be particularly disturbing to witnesses. "I believe that even if they successfully kill Kenneth Smith in this way and they don't kill anybody else in the room, it's going to be a very strikingly visual thing to view and people will wonder afterwards, was that cruel?"
Zivot and other critics, including spiritual adviser and anti-death penalty activist Rev. Jeffrey Hood, have raised concern that nitrogen gas could pose a risk to others in the vicinity of the execution room if a leak were to occur.
According to Michael Copeland, the use of nitrogen gas in executions is not a major threat. He explains that nitrogen is an inert gas and not deadly, but rather it is the lack of oxygen that poses a problem. He suggests that individuals can wear an oximeter to monitor their oxygen levels or ensure that the execution chamber is well-ventilated to prevent gas dispersion.
The upcoming execution of Smith is shrouded in uncertainty as his plans remain unknown. Alabama had previously attempted to execute him through lethal injection in September 2022, but the process was halted due to difficulties in finding a suitable vein for the IV line insertion.
This incident marked the third consecutive failed execution in Alabama, prompting Governor Kay Ivey to impose a moratorium on executions and initiate a review of the state's execution procedures.
The specific details of Alabama's nitrogen gas execution protocol are largely redacted due to the state's execution secrecy laws. Smith's lawyer stated that he only received an unredacted copy in late November.
Smith's lawyer raised concerns about the potential dangers of using a mask during the execution process. The lawyer questioned whether the state would take the necessary precautions to ensure that the mask would not leak nitrogen or allow oxygen to enter. These concerns were presented in an effort to highlight the potential harm that could come to Smith during the execution.
Zivot, a prominent figure in the field, also expressed serious reservations about the use of the mask. He stated that he was unsure if nitrogen gas could be used in a way that would not cause pain or put others at risk. This unique issue, according to Zivot, has never been seen before in the history of American executions.
