U.S. District Judge R. Austin Huffaker rejected Kenneth Smith’s request for an injunction to stop Alabama from executing him with nitrogen gas late last month, making his execution, scheduled for January 25, more likely, although the constitutionality of using nitrogen gas in state killing could be raised in the U.S. Supreme Court.
No other state has ever attempted to kill a person using nitrogen gas, although Oklahoma and Mississippi have also included the method in their execution protocols, and a Nebraska lawmaker introduced a bill earlier this month that would add the method to its protocol, Fox News reports. Nebraska currently uses lethal injection as its sole method.
“I’m absolutely terrified,” Smith told NPR reporter Chiara Eisner in a phone interview this week.
Smith, one of two men convicted in the 1988 murder-for-hire slaying of Elizabeth Sennett, has already been subjected to one botched execution. Corrections officials ended their attempt to kill Smith in November of last year after trying and failing for over an hour to find a usable vein for its lethal drugs. His was the third execution in Alabama in 2022 that was botched and the fourth since 2018. All were related to the execution team’s inability to insert IV lines.
The 58-year-old Smith told NPR he is “still carrying the trauma” from that experience. He said he is being treated for PTSD, and when he was told the date of his execution, “my level of anxiety this time was not even close to what I faced last time. Everybody is telling me that I’m going to suffer.”
The Alabama Department of Corrections released its heavily redacted Execution Procedures for using nitrogen hypoxia. They include securing the person on a gurney and placing a mask on his face. The mask will initially supply normal air, and will then carry pure nitrogen. The nitrogen gas will be administered for either 15 minutes, or five minutes, “following a flatline indication on the EKG, whichever is longer.” The spiritual advisor will be allowed inside the chamber; witnesses, including the media, will be outside the chamber viewing the execution through a window.
As the Equal Justice Initiative notes, the American Veterinary Medical Association states that nitrogen gas should not be used to euthanize animals “because [they] may experience distressing side effects before loss of consciousness.” It is also not used for terminally-ill patients in states where medically-assisted dying is legal, the New York Times reported.
This week, the United Nations Human Rights Office expressed its “alarm” at Alabama’s plan to execute Smith “through the use of a novel and untested method – suffocation by nitrogen gas, which could amount to torture or other cruel, inhuman or degrading treatment or punishment under international human rights law.” UN High Commissioner for Human Rights Ravina Shamdasani said, in a news release that, “We have serious concerns that Smith’s execution in these circumstances could breach the prohibition on torture or other cruel, inhuman, or degrading treatment or punishment, as well as his right to effective remedies.”
