by Sean Wild
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The state of Alabama wants to be the first to carry out an execution via nitrogen hypoxia. Alabama is one of three states to authorize the method, along with Mississippi and Oklahoma, though until now no state had actually attempted to use it. The inmate facing said execution method is Kenneth Smith, who has been on death row since 1996 for the murder-for-hire killing of Elizabeth Sennett that he and another individual carried out in 1988. His original execution by lethal injection was scheduled and then called off in November 2022 after the state spent over two hours unsuccessfully trying to connect the intravenous lines needed to administer the drug.
This new method of execution would force a person to breathe pure nitrogen, leading to death from lack of oxygen. The air we all breathe is composed of approximately 78 percent nitrogen and 21 percent oxygen, along with small traces of various other gasses such as argon and carbon dioxide. Nitrogen itself is not poisonous, but replacing the air composition with only nitrogen would deprive someone of the oxygen they need, leading to unconsciousness and then death.
Though the Alabama Court has approved the use of nitrogen hypoxia, there are many who have questioned the legality and safety of this method, including Smith himself. The method is being challenged on two grounds: that Smith’s first failed execution attempt has not been thoroughly investigated to ensure no complications will happen during a second attempt, and that this new method is experimental and completely untested. The combination of those two matters could result in another cruel and potentially torturous execution attempt. On the untested nature of using nitrogen gas, Jen Moreno, a lawyer at the Berkeley Law Death Penalty Clinic, an organization which “seeks justice for individuals facing the death penalty by providing them with high-quality representation,” commented that, “If and when states begin carrying out executions with nitrogen, it will amount to the same type of experimentation we see in the different variations of lethal injection,” and that “implementing nitrogen gas is not as simple as states suggest.”
In addition, there are safety concerns that need to be taken into consideration concerning not only Kenneth Smith, but all those present at the execution. This would include those viewing as well as nearby workers, who could potentially be in harm’s way. Those nearby may be exposed to a low oxygen, high nitrogen environment, which could cause hyperventilation, asphyxiation, and even suffocation. Due to the odorless and invisible nature of nitrogen gas, it would be difficult to detect until too late. Kenneth Smith’s spiritual advisor, Rev. Dr. Jeff Hood has even been asked to sign a legal document acknowledging he will be at risk if he is at Smith’s side during the execution and that Rev. Dr. Hood would need to stay at least three feet from Smith. Not only is this an admission of the inherent risks of this procedure, but it could also be a possible violation of religious liberties. The 2022 Supreme Court case Ramirez v. Collier determined prisoners have the right to a spiritual advisor’s presence during an execution, including the right to audibly pray and place their hands on the prisoner.
Organizations such as the Equal Justice Initiative and the Death Penalty Information Center have also voiced concerns over this method. “Alabama’s request to experiment on Kenny Smith by using a controversial and untested execution method raises serious constitutional questions and is expected to be challenged in court,” wrote the Equal Justice Initiative. The Death Penalty Information Center noted, “Nitrogen gas has never been tested in an execution setting but has caused serious injury and death in industrial accidents.” The United Nations made a statement expressing caution: “We are concerned that nitrogen hypoxia would result in a painful and humiliating death.” Additionally, even the company Airgas, one of Alabama’s largest suppliers of industrial gasses, has taken a stand and announced they will not supply the nitrogen for the execution. In a statement, Airgas stated, “supplying nitrogen for the purpose of human execution is not consistent with our company values.”
Kenneth Smith’s execution is set to take place on January 25th. A petition to stop the execution, sponsored by Death Penalty action and addressed to Alabama Governor Kay Ivey, can be found here.