When Alabama's Republican Gov. Kay Ivey issued a temporary moratorium on capital punishment in her state in 2022, she insisted that "for the sake of the victims and their families, we've got to get this right." Getting it right, in this case, meant addressing Alabama's record of botched executions — including that of convicted murderer Kenneth Eugene Smith, who days earlier had survived an attempt at lethal injection after officials reportedly "couldn't find a suitable vein to inject the lethal drugs."
Nearly a year later — and decades after a judge placed him on death row, overruling a jury decision to sentence Smith to life in prison — Alabama officials have requested a new execution date, when they plan to eschew lethal injection and become the first state to kill a prisoner via nitrogen hypoxia.
"It is a travesty that Kenneth Smith has been able to avoid his death sentence for nearly 35 years," Alabama Attorney General Steve Marshall said in a statement. But suffocating Smith to death by forcing him to breathe nitrogen instead of oxygen has raised serious questions from human rights observers and death penalty researchers, who allege the relatively untested practice is cruel and inhumane.
'Unacceptable for other mammals'
Advocates for nitrogen hypoxia argue it "will quickly render the subject unconscious, with death ensuing within minutes," Columbia University law professor Bernard Harcourt wrote in The New York Times, cautioning that "there are a lot of things that could go wrong" such as ill-fitting masks that, by letting oxygen in, could prolong death or even lead to long term brain damage rather than killing the victim.
"The entire proposal for nitrogen gas was the product of a 14-page report" made by Criminal Justice professor Michael Copeland of Oklahoma's East Central University, explained University of Richmond law professor and frequent capital punishment commentator Corinna Barrett Lain to Scientific American in 2022. "He’s not a doctor. He doesn’t have any medical training. He’s not a scientist. But he knew one of the legislators" who ultimately recommended the method. Despite arguments from proponents that "nitrogen gas inhalation would cause a death that would be peaceful and not cruel,” Emory University anesthesiology professor Joel Zivot added, "there’s no evidence for any of that.” In fact, the dangers Harcourt described were referenced by Justice Brett Kavanaugh when the Supreme Court "denied a Missouri inmate's request to be executed by the method in 2019," according to NPR.
Indeed, as Harcourt also pointed out, the scientific evidence that does exist on nitrogen hypoxia is less than reassuring; the American Veterinary Medical Association's 2020 euthanasia guidelines explicitly state that outside of chickens and turkey, the use of nitrogen is "unacceptable for other mammals" and "create an anoxic environment that is distressing for some species."
'Vague, sloppy, dangerous and unjustifiably deficient'
As the first state in the nation to move forward with a nitrogen hypoxia execution, Alabama is also the first state to establish and publish official protocols for conducting the procedure. These heavily redacted protocols detail the sequence and choreography of the planned execution in the weeks leading up to the event, as well as through the inmate's death. Per the document, prison officials are tasked with inspecting the equipment, including the mask and its placement on the prisoner's face, and are instructed to leave the nitrogen gas flowing for fifteen minutes, or for five minutes after the patient has flatlined on an EKG.
The protocols, as written, force one to "only speculate" about how the actual procedure will occur, execution researcher and Fordham University law professor Deborah Denno told The Guardian. In particular, Denno focused on the prescriptive rules for placing and maintaining the mask on the prisoner as "especially puzzling," asking "what if the inmate tries to take it off, immediately or during the procedure?" — a contingent not addressed in the document. The protocol is "vague, sloppy, dangerous and unjustifiably deficient" Denno proclaimed, adding that the redactions make it "all the more incomprehensible."
Former Alabama State Sen. Trip Pittman, who initially proposed using nitrogen for executions, defended the procedure to The Associated Press, insisting "it’s readily available. It’s 78% of the air we breathe, and it will be a lot more humane to carry out a death sentence."