Alabama calls nitrogen execution method ‘humane,’ but critics raise doubts

MONTGOMERY, Ala. — Alabama, unless stopped by the court, plans to strap Kenneth Eugene Smith to a gurney on Thursday and use a gas mask to replace breathing air with nitrogen, depriving him of oxygen, in the nation’s first execution attempt with this method.

The Alabama attorney general’s office told federal appeals court judges last week that nitrogen hypoxia is “the most painless and humane method of execution known to man.” But exactly what the 58-year-old Smith will feel after the director turns on the gas is unknown, some doctors and critics say.

“What effect the convicted person will feel from the nitrogen gas itself, no one knows,” wrote Dr. Jeffrey Keller, president of the American College of Correctional Physicians, said in an email. “This has never been done before. It is an experimental procedure.”

Keller, who was not involved in the development of the Alabama protocol, said the plan is to “eliminate all oxygen from the air” that Smith breathes by replacing it with nitrogen.

“Since the convict no longer breathes oxygen, he will die,” Keller said. “It’s little different than putting a plastic bag over someone’s head.”

The state of Alabama has predicted in federal court filings that the nitrogen gas “will cause unconsciousness within seconds and death within minutes.”

The state plans to place a “full face mask with air supply” over Smith’s face. The nitrogen would be administered for at least 15 minutes or “five minutes after a flat indication on the ECG, whichever is longer,” according to the state protocol.

The execution would be the first attempt to use a new method since the introduction of lethal injection in 1982. Three states – Alabama, Mississippi and Oklahoma – have approved nitrogen hypoxia as a method of execution. Some states are exploring new methods because lethal injection drugs are difficult to find.

The American Veterinary Medical Association wrote in 2020 euthanasia guidelines that nitrogen hypoxia is not an acceptable euthanasia method for most mammals because the anoxic environment is “distressing.” And experts appointed by the UN Human Rights Council warned that they believe the execution method could violate the ban on torture.

Dr. Joel Zivot, an anesthesiologist who was one of four professionals who filed the UN complaint that led to the warning, said Smith is at risk of having seizures and choking on his own vomit. He said any leak under the mask could prolong the execution.

“A leak will do two things. It will potentially endanger people nearby. … Air could also get under the mask,” Zivot said. “And so the execution could be extended, otherwise he might never die, he might only be injured.”

Much of the record of nitrogen-related deaths comes from industrial accidents – where leaks or mix-ups have killed people – and from suicide attempts. The U.S. Chemical Safety and Hazard Investigation Board found that 80 people died from nitrogen asphyxiation between 1992 and 2002.

Smith was one of two men convicted in 1988 of the murder-for-hire of a pastor’s wife. Prosecutors said the men were paid $1,000 to kill 45-year-old Elizabeth Sennett on behalf of her husband, who wanted to collect an insurance premium. The coroner testified that Sennett was stabbed repeatedly. Her husband committed suicide when he became a suspect. John Forrest Parker, the other convicted man, was executed in 2010.

The victim’s son, Charles Sennett Jr., said in an interview with WAAY-TV that Smith “needs to pay for what he did.” He and other family members plan to witness the execution.

“And some of these people say, ‘Well, he doesn’t have to suffer like this.’ Well, he didn’t ask mom how to suffer?” the son told the channel. “They just did it. They stabbed her – several times.”

Smith’s initial conviction was overturned. He was convicted again in 1996. The jury recommended a life sentence by an 11-1 vote, but a judge sentenced Smith to death. Alabama no longer allows a judge to overrule a jury’s verdict in death penalty cases.

Smith is one of the few people to survive a previous execution attempt. The state attempted to administer a lethal injection in 2022, but the prison system halted it before the drugs were administered because staff had difficulty connecting the two required intravenous lines.

Smith’s lawyers are asking the courts to block the execution with nitrogen, arguing that it is unconstitutional for the state to make a second attempt to execute him and that his plan violates the ban on cruel and unusual punishment and his least deserves more research before it is applied.

“It is indefensible for Alabama officials to simply dismiss the very real risks posed by this untested method and experiment on a man who has already survived one execution attempt,” said Robin M. Maher, executive director of the Death Penalty Information Center.

The Sant’Egidio Community, a Vatican-affiliated Catholic charity based in Rome, urged Alabama on Tuesday not to go through with the execution, saying the chosen method is “barbaric” and “uncivilized” and brings the state “indelible shame ” would bring.

The Alabama attorney general’s office noted that when Smith previously fought against lethal injections, he had suggested nitrogen as an alternative execution method. Courts require prisoners who challenge their method of execution to propose an alternative method.

“Now that the state is willing to give Smith what he asked for, he is objecting,” the attorney general’s office said in a statement Monday.

The inmate’s spiritual advisor said Smith is afraid of what will happen to him.

“Right now, Kenny is nauseous, deeply pained and shocked by the nitrogen hypoxia experiment that is to come,” said the Rev. Jeff Hood, an opponent of the death penalty. “Despite the darkness that has descended, he tries very hard to make every second he would have left with as much love as he could muster.

Several protests are planned in the state. A group of religious leaders on Monday petitioned the state’s governor asking him to halt the execution. “Prisoners are not guinea pigs,” said the Rev. Shane Isner of First Christian Church on the Capitol steps.

Alabama Gov. Kay Ivey told The Associated Press last week that the state was ready to move forward.

“Execution using this method was approved in 2018,” Ivey said. “The Attorney General’s Office and the Department of Corrections have assured us that all protocols are in place, and we will enforce that law.”