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The Legal Battle and Implications of Alabama's First Nitrogen Gas Executions

On January 25, 2024, the state of Alabama executed Kenneth Eugene Smith using nitrogen gas, the first such procedure attempted in the United States. The method of nitrogen hypoxia, in which the person inhales pure nitrogen gas, deprives the body of oxygen inducing nitrogen hypoxia,  effectively suffocating them, theoretically causing swift unconsciousness and subsequent death. Lethal injection, a cocktail of drugs that stop the heart, has been the standard method of execution since the 1980s. Mr. Smith’s recent execution brings to light  the growing debate surrounding the death penalty in the United States, which many states have banned – those states that haven’t, like Alabama, have had difficulties with the standard lethal injection method, and have subsequently been seeking an alternative.


At the time of writing, Alabama, Oklahoma, and Mississippi are the only states that have approved nitrogen hypoxia as an alternative method of execution – though only Alabama has so far attempted it. The use of lethal injection has in recent years exposed  a series of botched executions, leading Alabama’s governor to order a temporary halt on executions back in 2022. Further issues involve the executioners themselves – often prison workers without medical experience – who can have trouble correctly administering the drugs, with the potential to cause tremendous suffering for the prisoner. Supporters of nitrogen hypoxia as an alternative to lethal injection argue that it is painless and a more humane option. However, without sufficient research on its effects, Dr. Jeffrey Keller, president of the American College of Correctional Physicians, calls the Mr Smith’s execution  “an experiment.”  


Mr. Smith was sentenced in 1996 for the murder of Elizabeth Sennett, whose husband had hired him and another man (executed back in 2010) to arrange her death. Though convicted of Ms. Sennett’s murder, the jury did not sentence Mr. Smith to death, instead voting 11-1 for life imprisonment. However, the judge overruled their decision, a manoeuvre that is now illegal in all fifty states. Alabama attempted to execute Mr. Smith by lethal injection back in 2022 but failed to find a proper vein before his death warrant expired.  


The state’s decision to employ nitrogen gas to execute Mr. Smith has sparked both national and international backlash. In a last-ditch effort, Mr. Smith’s attorneys staged a legal battle, claiming the use of nitrogen gas violated the Constitution’s ban on cruel and unusual punishment. Though the U.S. Supreme Court declined to prevent Alabama from proceeding with the execution, Justice Sonia Sotomayor condemned the state’s decision in her dissent: “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before.” Dr. Philip Nitschke, who has worked with nitrogen hypoxia as a method for assisted suicide, called out Alabama’s use of a mask to administer the nitrogen gas as a “quick and nasty” method due to the dangers of vomiting and leakage, which would prolong the execution. In January 2024, the U.N. Human Rights Office expressed alarm at the impending execution, noting that it would likely violate international human rights law outlined in the Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – both of which the United States is bound.  


In a statement, Alabama Attorney General Steve Marshall called the use of nitrogen gas “an effective and humane method of execution.” Alabama corrections Commissioner John Hamm also noted that “Nothing was out of the ordinary from what we were expecting.” The state had previously claimed that the nitrogen gas would cause Mr. Smith to lose consciousness within seconds and die in a matter of minutes. Media witnesses at Mr. Smith’s execution reported that the process took about twenty-two minutes, during which Mr. Smith thrashed and gasped for air. One of the media witnesses, Lee Hedgepeth, said of Mr. Smith’s execution, “This was the fifth execution that I’ve witnessed in Alabama, and I have never seen such a violent reaction to an execution.”  


A day after Mr. Smith’s execution, the U.N. High Commissioner for Human Rights, Volker Turk, expressed regret at Alabama’s decision. Opponents of the death penalty fear that Alabama’s actions may open the doors for future use of nitrogen gas in other states. Just days after the execution, Ohio’s Attorney General called on Ohio to pass legislation allowing nitrogen gas, which would end the pause on executions Ohio Gov. Mike DeWine implemented back in 2020 due to the state’s difficulties with lethal injection. Ohio Senate Democratic Leader Nickie Antonio, an opponent of the death penalty, condemned the use of nitrogen gas as “unconscionable,” underscoring the fierce divide fueling the battle over the death penalty. In an interview with CNN in response to Mr. Smith’s execution, Bryan Stevenson, lawyer and  founder of the Equal Justice Initiative, cut to the heart of the debate: “The threshold question of the death penalty isn’t whether someone deserves to die for the crime they’ve committed. The threshold question is: do we deserve to kill?”

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