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Alabama Carries Out First Nitrogen Gas Execution in the U.S. Amid Controversy

By Vaidehi Mehta, Esq. | Last updated on

The state of Alabama just carried out the first execution in the country using nitrogen gas on inmate Kenneth Smith, even though the jury had voted to spare his life. The Supreme Court declined to intervene. How did this all come about? Let’s break down the history of Smith’s case and what it means for the future of executions in America.

Alabama's Execution Track Record

Smith appealed first to the Alabama Court of Criminal Appeals. Per Alabama law, that court is obligated to review if the death sentence was properly imposed. The law directs the court to determine whether Smith’s death sentence “was disproportionate or excessive when compared to the penalties imposed in similar cases.”

What has Alabama’s history of capital punishment been like? It consistently has one of the highest rates of per capita death row inmates. Alabama was also the last state to practice what’s called “judicial override” of death sentences. This is where a judge can override a jury's recommendation regarding sentencing. After a jury convicts a defendant of a capital crime, they deliberate on the appropriate sentence: death or life imprisonment (sometimes with the possibility of parole). In Alabama’s case, a judge could impose a death sentence even if a jury recommended life imprisonment. This ended only as recently as 2017, when Alabama changed the law after growing discomfort with the practice.

Considered in context, it wasn't shocking when the Alabama appellate court reviewed the appropriateness of Smith’s death penalty sentence and gave their okay. Alabama proceeded to schedule him for a lethal injection, and Smith’s attorneys turned to the U.S. Supreme Court.

SCOTUS Declines to Intervene

Smith sued Alabama’s Department of Corrections Commissioner, John Hamm (no, not the dapper Draper) in the Supreme Court, and asked the Court for a stay of execution. This is something that SCOTUS in theory could grant in various cases. Challenges to the state's method of execution, particularly the drugs used in lethal injection, have been a basis for stays if there is a question about the potential for cruel and unusual punishment. Smith was wary of the fact that Alabama had botched a couple of executions by lethal injections in just the past few months due to difficulties accessing the vein and warned SCOTUS that his executioners would struggle and likely fail to complete their task due to this pattern. The Court declined to grant the stay without explanation. Three justices wrote in dissent.

In 2022, Hamm proceeded with using the lethal injection on Smith … and botched it, as predicted. After an hour and a half of his executioners stabbing needles into his arms and collarbone again and again and failing to access his veins, they called it a day. But they didn’t call it quits; they set him up to try a different method: nitrogen hypoxia.

Death by Nitrogen Hypoxia

Smith’s attorneys continued to ask SCOTUS for a stay of his rescheduled execution by the new method. In the year-and-change since his first attempted execution, doctors confirmed that Smith suffered severe PTSD reliving the four hours he was strapped to a gurney, including physical symptoms such as vomiting.

Also known as nitrogen asphyxiation or inert gas asphyxiation, this method of execution had never been used before in the United States. The process involves displacing the oxygen in the environment around the inmate with pure nitrogen. This can be done by placing a mask over the inmate's face (in Smith’s case) or by removing the oxygen from a sealed chamber). As the oxygen level decreases, the inmate begins to experience hypoxia, which is a lack of oxygen reaching the tissues of the body, including the brain. The lack of oxygen would eventually lead to unconsciousness and, if the process continues, death due to hypoxic brain injury.

Nitrogen gas has been proposed as a more humane alternative to other forms of execution, such as the lethal injection method that failed Smith before. Its proponents claim that it’s painless because, in theory, the person inhaling pure nitrogen does not experience the panic or suffocation sensations associated with choking or drowning, since carbon dioxide levels in the blood do not increase to trigger the body's suffocation response. They also suggest that it could be more reliable than lethal injection, which has faced challenges due to difficulties in obtaining the drugs and instances of botched executions.

 An Untested Death Method

This was all theoretical. The method has not been well-tested on humans. A couple of years ago, misleading headlines were circulated about Switzerland allegedly approving a “suicide capsule” using the same method, but that was debunked. Regardless, several states — including Oklahoma and Mississippi — passed legislation authorizing its use in executions. But none of them had used it until last week.

Experts argued that there was a major risk that Smith would experience nausea and vomiting during his execution (partly due to his PTSD conditions) and would therefore choke to death on his own vomit before passing out from the hypoxia. Furthermore, Alabama did not intend to use an airtight seal on the mask, claiming it was unnecessary. This heightened the risk that oxygen would seep in and cause stroke or suffocation, adding pain and time to Smith’s death.

SCOTUS declined to stay his execution a second time last Thursday. Sotomayor wrote a lengthy dissent “With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment,” saying she could only hope Smith wasn’t proven right a second time about his fears of the method’s potential failure. The same day, his execution was conducted with nitrogen gas.

The Second Attempt

It went far from smoothly. During the 22-minute execution, the 58-year-old shook and convulsed for several minutes on the gurney, followed by several minutes of gasping for air until he eventually stopped breathing. The attorney general had predicted that Smith would quickly lose consciousness and be dead within minutes. Many expressed alarm, saying that it was the opposite of the promised quick and painless death. Smith’s spiritual adviser, the Rev. Jeff Hood, called out the discrepancy that he witnessed: “We didn’t see somebody go unconscious in 30 seconds. What we saw was minutes of someone struggling for their life.”

Hamm said the reactions were “nothing out of the ordinary" and “was expected.” The attorney general claimed it was a “textbook” execution. He said: “As of last night, nitrogen hypoxia as a means of execution is no longer an untested method. It is a proven one.” He also said that he anticipates Alabama scheduling more nitrogen hypoxia executions. Over 40 inmates on death row had chosen this method as their preference of lethal injection, but that choice had been made before Alabama had developed procedures around it — and before this result had played out.

What Next?

Since 2019, SCOTUS has opted out of interfering in every execution case except those based on religious principles. For example, in 2021, the Court did choose to step in to temporarily stop Alabama from executing an inmate who had asked for his pastor to be present in the execution chamber; he was eventually still executed when his religious accommodation was granted. In all other cases, SCOTUS allowed executions to proceed. And it’s not just stays of execution that are denied. The Court has also declined to review capital punishment cases.

In addition to the Court’s willingness to let executions proceed, the Department of Justice under President Biden recently confirmed it was seeking the death penalty for the Buffalo mass shooter who killed 10 people in a supermarket in a racially-motivated tragedy. While Americans are very mixed on whether the death penalty should be allowed, and fewer and fewer states are executing convicts (Alabama being an exception), it appears the momentum is for the death penalty to remain, at least at the federal level and among some states.

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