Why some critics are so horrified by Alabama's new execution method
Nitrogen hypoxia has been deemed 'unacceptable' for pet euthanasia
When Alabama's Republican Gov. Kay Ivey issued a temporary moratorium on capital punishment in her state in 2022, she insisted that "for the sake of the victims and their families, we've got to get this right." Getting it right, in this case, meant addressing Alabama's record of botched executions — including that of convicted murderer Kenneth Eugene Smith, who days earlier had survived an attempt at lethal injection after officials reportedly "couldn't find a suitable vein to inject the lethal drugs."
Nearly a year later — and decades after a judge placed him on death row, overruling a jury decision to sentence Smith to life in prison — Alabama officials have requested a new execution date, when they plan to eschew lethal injection and become the first state to kill a prisoner via nitrogen hypoxia.
"It is a travesty that Kenneth Smith has been able to avoid his death sentence for nearly 35 years," Alabama Attorney General Steve Marshall said in a statement. But suffocating Smith to death by forcing him to breathe nitrogen instead of oxygen has raised serious questions from human rights observers and death penalty researchers, who allege the relatively untested practice is cruel and inhumane.
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.
Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
'Unacceptable for other mammals'
Advocates for nitrogen hypoxia argue it "will quickly render the subject unconscious, with death ensuing within minutes," Columbia University law professor Bernard Harcourt wrote in The New York Times, cautioning that "there are a lot of things that could go wrong" such as ill-fitting masks that, by letting oxygen in, could prolong death or even lead to long term brain damage rather than killing the victim.
"The entire proposal for nitrogen gas was the product of a 14-page report" made by Criminal Justice professor Michael Copeland of Oklahoma's East Central University, explained University of Richmond law professor and frequent capital punishment commentator Corinna Barrett Lain to Scientific American in 2022. "He’s not a doctor. He doesn’t have any medical training. He’s not a scientist. But he knew one of the legislators" who ultimately recommended the method. Despite arguments from proponents that "nitrogen gas inhalation would cause a death that would be peaceful and not cruel,” Emory University anesthesiology professor Joel Zivot added, "there’s no evidence for any of that.” In fact, the dangers Harcourt described were referenced by Justice Brett Kavanaugh when the Supreme Court "denied a Missouri inmate's request to be executed by the method in 2019," according to NPR.
Indeed, as Harcourt also pointed out, the scientific evidence that does exist on nitrogen hypoxia is less than reassuring; the American Veterinary Medical Association's 2020 euthanasia guidelines explicitly state that outside of chickens and turkey, the use of nitrogen is "unacceptable for other mammals" and "create an anoxic environment that is distressing for some species."
'Vague, sloppy, dangerous and unjustifiably deficient'
As the first state in the nation to move forward with a nitrogen hypoxia execution, Alabama is also the first state to establish and publish official protocols for conducting the procedure. These heavily redacted protocols detail the sequence and choreography of the planned execution in the weeks leading up to the event, as well as through the inmate's death. Per the document, prison officials are tasked with inspecting the equipment, including the mask and its placement on the prisoner's face, and are instructed to leave the nitrogen gas flowing for fifteen minutes, or for five minutes after the patient has flatlined on an EKG.
The protocols, as written, force one to "only speculate" about how the actual procedure will occur, execution researcher and Fordham University law professor Deborah Denno told The Guardian. In particular, Denno focused on the prescriptive rules for placing and maintaining the mask on the prisoner as "especially puzzling," asking "what if the inmate tries to take it off, immediately or during the procedure?" — a contingent not addressed in the document. The protocol is "vague, sloppy, dangerous and unjustifiably deficient" Denno proclaimed, adding that the redactions make it "all the more incomprehensible."
Former Alabama State Sen. Trip Pittman, who initially proposed using nitrogen for executions, defended the procedure to The Associated Press, insisting "it’s readily available. It’s 78% of the air we breathe, and it will be a lot more humane to carry out a death sentence."
Create an account with the same email registered to your subscription to unlock access.
Sign up for Today's Best Articles in your inbox
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
Rafi Schwartz has worked as a politics writer at The Week since 2022, where he covers elections, Congress and the White House. He was previously a contributing writer with Mic focusing largely on politics, a senior writer with Splinter News, a staff writer for Fusion's news lab, and the managing editor of Heeb Magazine, a Jewish life and culture publication. Rafi's work has appeared in Rolling Stone, GOOD and The Forward, among others.
-
Coeur d'Alene, Idaho, is a town for all seasons
The Week Recommends Fall, winter, spring and summer all usher in new activities
By Catherine Garcia, The Week US Published
-
What went wrong at CVS?
Today's Big Question Pharmacy chains are in crisis
By Joel Mathis, The Week US Published
-
Russia's best investment
Opinion Eric Adams isn't the only politician with foreign benefactors
By William Falk Published
-
'Is the death penalty racist? Of course it is.'
Instant Opinion Opinion, comment and editorials of the day
By Harold Maass, The Week US Published
-
Alabama lawmakers rush to shield IVF
speed read The state's House and Senate passed bills to protect doctors, clinics and hospitals offering in vitro fertilization treatment
By Peter Weber, The Week US Published
-
Alabama clinics stop IVF care after court ruling
Speed Read The Alabama Supreme Court ruled that frozen embryos have the same legal protections as children
By Peter Weber, The Week US Published
-
Alabama's Supreme Court ruling on frozen embryos could have national implications
Talking Points The court recently ruled that embryos created during IVF are children
By Justin Klawans, The Week US Published
-
'The death penalty, it seems, is just too embedded in America's DNA to go away'
Instant Opinion Opinion, comment and editorials of the day
By Harold Maass, The Week US Published
-
The states of statewide gerrymandering in 2023
In Depth Two extreme examples to watch ahead of the upcoming elections
By Rafi Schwartz Published
-
Alabama defies Supreme Court order for additional majority-Black district
Speed Read
By Justin Klawans Published
-
Inside Tommy Tuberville's unrelenting military holds
Under the Radar The Alabama Republican Senator is facing serious pushback for taking the conservative fight against reproductive health care straight to the Pentagon
By Rafi Schwartz Published