When Kenneth Eugene Smith is taken to the Alabama death chamber to be executed next week for his role in the 1988 commission murder of a pastor's wife, the state will use untested and untested methods to kill him. He plans to end his life and suffocate him to death. A flow of nitrogen gas delivered through the face mask.
In a federal appeals court on Friday, Mr. Smith's lawyers argued that not only were Mr. Smith's constitutional rights violated, but he could have been exposed to a painful death, and the details surrounding the state's new execution protocols were not clear. Most sought a stay on the case, arguing that it “deserves further clarification.” Scrutiny. ”
of Use of nitrogen gas The death penalty, which has been condemned not only by some medical experts but also by veterinarians who oppose its use on animals, would be the death penalty first. In 2020, the American Veterinary Medical Association recommended against the use of nitrogen gas as a method of euthanizing most mammals, calling it “painful.” One of the few uses of nitrogen gas in animal euthanasia is for chickens.
The Office of the United Nations High Commissioner for Human Rights expressed concern in a statement, calling it an “untested method.”It might be like torture or any other cruel, inhuman or degrading treatment or punishment under international human rights law. ”
Origin of the nitrogen gas action plan
If Smith's execution takes place, As scheduled for January 25thThis is the most notable in a strange journey of new methods devised not by scientists but by elected officials seeking ways around the increasing obstacles facing states that have long relied on lethal injections. It represents the progress that should be made.
Discussion of using nitrogen gas in the state's executions first took root in 2015, when the Oklahoma Legislature approved it after a shortage of the drug used in lethal injections made executions difficult. It was the first state to do so. Weeks after that passed, then-Governor Mary Fallin signed the law, allowing the state to carry out the death penalty using nitrogen gas if lethal injection becomes unconstitutional or impossible. He said it was possible.
Jay Reeves/AP; Inset: Alabama Department of Corrections
The bill is the brainchild of former Oklahoma Congressman Mike Christian. At the time, Christian told The Oklahoman that he thought the method was “revolutionary” and “probably the best method we've come up with since governments started executing people.” Christian touted its widespread accessibility, cost-effectiveness and even the state's ability to produce its own nitrogen gas if needed.
Before being voted on, the bill went through several public hearings, and lawmakers sought research assistance from groups of professors and people who have experienced hypoxia (oxygen deprivation) in the past.
Michael Copeland, a former professor at East Central University, was part of a three-person team that helped the Oklahoma Legislature conduct a study of how the technique works. He told CBS News this was not an unusual request, noting that he “often works pro bono for Congress on a variety of criminal justice issues.”
At a committee hearing in February 2015, a 30-slide PowerPoint was used to explain the idea and how it would work. The presentation states that the method was “derived from a review of the scientific, technical and safety literature on inhalation of nitrogen and other inert gases.” ”
Their conclusions included that “induction of hypoxia by nitrogen inhalation is a humane method of execution.” In the slideshow, a 1995 National Review article and his 2014 Slate article are credited with helping spur the new method effort.
In addition to the PowerPoint slides, CBS News also viewed a 14-page document that Copeland claims was just a “draft” that he never planned to make public. This document contains similar information and analysis of medical literature on hypoxia dating back to the 1960s and his 1970s.
Missing from both the draft report and the PowerPoint was testimony from medical experts. Copeland said they reached out to multiple medical experts, but when asked to put their opinions on the record, many recanted for fear of losing board privileges.
Former Oklahoma State Sen. Irvin Yen is an anesthesiologist with more than 30 years of experience and helped sponsor the 2015 bill. Yen explained to CBS News the challenges in assessing the feasibility of this new method: “You can't study that.”
No execution method is completely risk-free, Yen said, noting that in firing squads, the inmate's heart stops after being shot, but there is still the possibility that they remain conscious and in pain.
“Wearing a tight-fitting mask is uncomfortable. Is it pain and suffering? Well, I wouldn't call it that,” Yen said. He added that he believes lethal injection remains the best method, and that Oklahoma likely won't use nitrogen gas even as Alabama prepares to use it.
A movement to attempt executions using nitrogen gas appears to be gaining ground among supporters of the death penalty.
In Nebraska, state Sen. Lauren Lippincott has introduced a bill that would make nitrogen gas an approved method of execution. For other states, Alabama could be a testing ground for whether to include it as a method of execution.
“Afterwards people will wonder, was that cruel?”
But critics are also speaking out. Dr. Joel Gibot, an anesthesiologist and associate professor of medicine at Emory University, told CBS News he has serious concerns.
“Due to Alabama's abysmal track record, we believe it is in the public's interest and the interest of justice for Alabama to present evidence as to why this method of execution is not cruel,” Zivot said.
Gibot has filed multiple complaints with the United Nations, saying he is concerned that the execution could be particularly disturbing to witnesses. “Even if we succeeded in killing Kenneth Smith this way and didn't kill anyone else in the room, it would still be a very impressive visual thing and people would look back and say, 'That was brutal. 'Is this true?' you wonder.”
Zivot and other critics, spiritual advisors and Anti-death penalty activist Reverend Jeffrey Hoodhas expressed concern that a leak of nitrogen gas could pose a danger to others near the execution chamber.
However, Michael Copeland does not consider nitrogen to be a major threat, saying, “Nitrogen is an inert gas and is by no means lethal. The problem is the lack of oxygen. All you have to do is wear it.'' An oximeter should be used to check oxygen levels. …but all you really have to do is make sure you have a well-ventilated room, taking into account how the gases will disperse. ”
If Smith enters his death chamber as planned next week, no one knows exactly what awaits him. This is the second attempt by the state to execute him. In September 2022, an execution by lethal injection was halted after the execution team was unable to find a vein to insert a central IV line, which took several hours.
This case was the third consecutive failed execution in Alabama. Gov. Kay Ivey suspends executions It also calls for a review of the country's enforcement process.
Alabama's current protocols for nitrogen gas executions remain largely redacted by the state's execution secrecy law. At Friday's hearing, Smith's lawyer said he was only granted access to the unredacted copy in late November.
At Friday's appeals court, Alabama's lawyers argued that nitrogen gas is the “least painful and humane method of execution known to man.”
Smith's lawyers argued that the mask could increase the chance of harm to Smith, and needed to make sure the mask remained airtight and didn't allow nitrogen to leak or oxygen to get in. He questioned whether the state would conduct adequate testing.
For Gibot, serious concerns remain.
“I don't know that nitrogen gas can be produced and cause a death that's not cruel and doesn't put anyone else at risk. This is a really unusual kind of problem, one that is one of the worst in the history of U.S. executions. “This is unprecedented,” he said.
