The US state of Alabama has said that it will execute convicted murderer Kenneth Eugene Smith on 25 January next year using a method that has not yet been used to deliberately kill a human being, nitrogen hypoxia.
The air that we breathe is normally composed of about 78% nitrogen, 21% oxygen, and a few trace elements. The execution method known as nitrogen hypoxia involves giving the prisoner gas that is pure nitrogen. Advocates argue that this will avoid the sensation of suffocation. The prisoner will feel that they are breathing normally, they claim, but will swiftly pass out through a lack of oxygen, with death following within minutes.
This method was inspired by industrial accidental deaths. Orchards use nitrogen filled rooms to store apples, and nitrogen is also used to purge tanks of other gases. Unprotected people who inadvertently enter these nitrogen filled environments often seem to lose consciousness and die without attempting to escape, indicating that they felt nothing amiss.
Three states—Alabama, Mississippi, and Oklahoma—have passed legislation adopting the method as an option. Alabama, which paused executions by lethal injection last year after two attempts ended in failure, will become the first to use it, barring a successful legal challenge by Smith. The execution has already been cleared by Alabama’s Supreme Court, but Smith’s lawyers filed a suit in federal court, arguing that Alabama was attempting to make their client the “test subject for this novel and experimental method.”
They also noted that Smith was one of two inmates whose lethal injection was halted last year, after staff failed to establish a proper intravenous line before the midnight deadline on his death warrant. “A second attempt to execute Mr Smith—this time with an experimental, never-before-used method and with a protocol that has never been fully disclosed to him or his counsel—is unwarranted and unjust,” wrote Smith’s lawyer Robert Grass in a statement.
Smith, 57, was convicted of the 1988 murder of Elizabeth Sennett, wife of a local pastor. Her husband, Reverend Charles Sennett, paid Smith and another man $1000 each to kill her, hoping to claim insurance money. The pastor took his life as investigators closed in. Smith’s accomplice John Forrest Parker was executed by lethal injection in 2010.
Alabama restarted lethal injections in July, recruiting new medical staff after an eight month pause to review what had gone wrong in the failed attempts to execute Smith and another man, Alan Miller. The July execution of James Barber, 64, the first since that pause, proceeded without incident.
Drug industry embargo
But lethal injection has become increasingly problematic for death penalty states as they have struggled to recruit staff competent in placing intravenous lines, and the key original component of the lethal injection cocktail, sodium thiopental, has also been unavailable in the United States for 13 years because of an industry embargo that denies states access to lethal drugs. States have turned to inferior substitutes, including midazolam, an anxiety drug, and oxycodone. Inmates executed with such drugs have at times seemed to struggle, exposing states to legal challenges under the Eighth Amendment to the US constitution, alleging cruel and unusual punishment.
Advocates of nitrogen hypoxia think that it can solve all these problems.1 “It’s probably the best thing we’ve come up with since the start of executing people by government,” said Republican state representative Mike Christian, introducing a successful bill to make it a legal method in Oklahoma.
Nitrogen is easy to obtain, and the prospects for a nitrogen embargo are nil. Nineteen states have expressed interest in the method if it is deemed to work. But details of Alabama’s procedure are patchy. Its execution protocol is heavily redacted.2 Many of the redactions seem to be aimed at preserving the anonymity of equipment suppliers. The prisoner will be strapped to a gurney and fitted with a mask, which at first will supply normal air. He will be given the opportunity to make a final statement, while wearing the mask, and then the warden will switch the supply to pure nitrogen. Witnesses, including the victim’s family and media, will watch through a window. The prisoner will not be sedated.
Deborah Denno, a law professor at Fordham University who is one of America’s leading death penalty experts, said, “This is a vague, sloppy, dangerous, and unjustifiably deficient protocol made all the more incomprehensible by heavy redaction in the most important places. Alabama has a regrettable history of refusing to recognise failure,” Denno told The BMJ. “So, an execution being deemed a ‘success’ by Alabama may not mesh with reality.”
Robin Maher, executive director of the Death Penalty Information Center, a group opposed to state executions, agreed. “There remain too many questions about this untested, unprecedented protocol for Alabama officials to responsibly move forward with this execution. No one, not even Alabama officials, know what will happen when they use nitrogen gas. Alabama has a history of botched executions, including an attempt with Mr Smith last year, so its track record does not inspire confidence,” he said.