The United Nations has decided that the scheduled nitrogen hypoxia execution of an Alabama death row prisoner this week constituted “torture and inhuman or degrading treatment or punishment”.
A federal judge has ruled that Alabama can use nitrogen gas to execute Kenneth Eugene Smith, 58, who was convicted of murdering a preacher’s wife in 1988 for pay. Elizabeth Sennett’s husband, who was badly in debt and wanted to collect insurance payments, paid Smith and the other man $1,000 apiece to kill her.
He survived Alabama authorities’ prior efforts to execute him via lethal injection in 2022. If it is implemented, it will be the first novel method of execution since the introduction of lethal injection in 1982. The state claims that the nitrogen gas will swiftly render the victim unconscious, but opponents have equated this hitherto untested method of execution to human experiments.
Meanwhile, OHCHR Spokesperson Ravina Shamdasan urged Alabama state officials to postpone Smith’s execution, which is set for January 25-26, “and to refrain from taking steps towards any other executions in this manner”.
“Alabama already sought to execute Smith unsuccessfully by lethal injection in 2022. Smith also has ongoing proceedings in federal court against his upcoming execution which have not been finally resolved,” she said in Geneva.
What is nitrogen hypoxia, and has it been used in the United States before?
Smith would die from a lack of oxygen, according to the state’s plans, if a respirator-style face mask is placed over his mouth and nose to replace breathable air with nitrogen. Although nitrogen hypoxia has been approved as an execution technique in three jurisdictions (Alabama, Mississippi, and Oklahoma), no one has applied to carry out a death sentence.
Is this different from the gas chamber?
Yes, precisely. Several states have already carried out executions with the lethal poison hydrogen cyanide. Walter LaGrand was the final prisoner executed in a US gas chamber. He was the second of two German brothers sentenced to death for the 1982 murder of a bank manager in southern Arizona. LaGrand died in 1999 after 18 minutes.
78% of the air we breathe is composed of colorless, odorless gas nitrogen, which is safe to breathe when coupled with the appropriate amount of oxygen. According to the concept of nitrogen hypoxia, if the air is 100% nitrogen, Smith will become unconscious and finally die due to a lack of oxygen.
A considerable proportion of nitrogen exposure-related deaths documented in medical journals are the result of suicide attempts and industrial accidents involving nitrogen leaks or mix-ups that kill workers.
How will Alabama carry out its execution?
The state indicated in a court filing that it will cover Smith’s face with a “NIOSH-approved Type-C full facepiece supplied air respirator”—a type of mask commonly used in industrial settings to provide life-saving oxygen—after Smith is strapped to the gurney in the execution room.
After reading Smith the execution warrant and asking if he has any final remarks, the warden will activate “the nitrogen hypoxia system” in a separate room. According to the state procedure, nitrogen gas will be delivered for a minimum of fifteen minutes or for five minutes after an EKG flatline indication, whichever is longer.
Is Alabama facing blowback before the execution?
Nitrogen gas will be used as a fatal penalty, despite the fact that veterinarians and medical specialists have opposed it. The American Veterinary Medical Association issued euthanasia recommendations in 2020, stating that while nitrogen hypoxia can be used to end a pig’s life in certain circumstances, it is not a suitable procedure for other mammals because it creates a “anoxic environment that is distressing for some species.”
Smith’s attorneys say he is being evaluated as a “test subject” for a new manner of execution.
A physician testified on Smith’s behalf, claiming that the low oxygen level could cause nausea, forcing him to choke to death from his own vomit.
The unproven practice “may amount to torture or other cruel, inhuman, or degrading treatment or punishment under international human rights law,” the UN Office of the High Commissioner for Human Rights cautioned in a statement.
Are there any legal battles ahead?
The 11th United States Circuit Court of Appeals will hear arguments on Friday, when Smith’s counsel will protest a federal judge’s January 10 decision to proceed with the execution. They claim that Alabama is attempting to utilize Smith as a “test subject” for a new form of execution because he survived the state’s prior attempt to execute him via lethal injection in 2022.
“Because Mr. Smith will be the first condemned person subject to this procedure, his planned execution is an experiment that would not be performed or permitted outside this context,” Smith’s attorneys wrote in the Monday court filing. They further claimed that the state violated his due process rights by scheduling the execution while his appeals were underway.
On the other hand, Alabama Attorney General Steve Marshall’s office will petition the court to allow the execution to proceed.
If Alabama’s execution proceeds, other states may try to adopt a similar procedure. However, if the court prevents the execution, it may slow the search for nitrogen gas as an alternative for capital punishment.