Alabama will carry out the first American execution by nitrogen
Alabama will carry out the first U.S. execution with nitrogen gas on Thursday evening, potentially opening a new frontier in how states execute death row inmates, despite concerns from capital punishment opponents about the untested method.
Several courts, including the U.S. Supreme Court, have allowed the execution to proceed, although lawyers for the convicted inmate, Kenneth Smith, filed a last-minute request for the nation's highest court to intervene.
As it stands now, prison officials plan to begin the execution around 6:00 PM Central Time. Mr. Smith, 58, is one of three men convicted of the 1988 murder of a woman whose pastor husband recruited them to kill her.
The protocol released by prison officials calls for Mr. Smith to be strapped to a gurney in the state execution chamber in Atmore, Ala., after which a mask will be placed on his head and a stream of nitrogen will be released into it, depriving him of oxygen robbed. It would be the second time the state has attempted to kill Mr Smith, following a botched lethal injection in November 2022 in which executioners failed to find a suitable vein before his death sentence expired.
The nitrogen method is similar to that used in some assisted suicide in Europe and elsewhere. Lawyers for the state have argued that death from nitrogen hypoxia is known to be painless, with unconsciousness occurring within seconds, followed by cardiac arrest. They also note that Mr. Smith and his lawyers have themselves determined that the method is preferable to the state's troubled practice of lethal injections.
Mr. Smith's lawyers argue that Alabama is not adequately prepared to carry out the execution, that a mask — instead of a bag or other covering — could let in enough oxygen to prolong the process and allow Mr. Smith suffer, and that Mr. Smith should suffer. Smith, who has been experiencing frequent nausea lately, could choke under the mask if he vomits.
A federal appeals court voted 2-1 on Wednesday evening to allow the execution to proceed, following concerns raised by Mr. Smith's lawyers. One of the attorneys, Jeffrey H. Horowitz, said the legal team would appeal the case to the Supreme Court, which amounts to a possible last-ditch effort to spare his life.
The Supreme Court on Wednesday declined to intervene in the attorneys' appeal in a separate case in which they had argued that trying to execute Mr. Smith a second time would amount to unconstitutional, cruel and unusual punishment, in part because of the dire consequences of the failed execution. There had been an execution attempt in 2022.
Mr. Smith's case is unique in part because the jury that convicted him of murder also voted 11 to 1 to sentence him to life in prison instead of the death penalty, but the judge overruled their decision. Alabama has since made it illegal for judges to overrule juries when imposing the death penalty — a ban that now exists in every state — but the new law did not apply to previous cases.
If the execution goes ahead without any visible problems, the procedure will likely also come under scrutiny by other states that face mounting problems in obtaining lethal injection drugs from pharmaceutical companies, under pressure from medical groups, activists and lawyers. Mississippi and Oklahoma have allowed their prisons to carry out executions by nitrogen hypoxia if they cannot use lethal injection, although they have never tried.
Nitrogen makes up about 78 percent of Earth's air and is normally harmless; oxygen, which makes up about 21 percent, is essential for human life. But when nitrogen is pumped into an enclosed space or a mask, it can quickly push out the oxygen and lead to rapid unconsciousness and death.
Alabama's first attempt at this method comes after several botched or difficult executions in which executioners struggled to find veins in the men they tried to put to death.
In 2022, executioners spent hours trying to gain access to the veins of Joe Nathan James, ultimately cutting one of his arms in what is known as a “cutdown” to administer the fatal drugs, according to a private autopsy. Since 2018, three death row inmates in the state, including Mr. Smith, have survived execution attempts because they had difficulty inserting intravenous lines.
Four days after Mr. Smith failed to be executed in 2022, the state's governor, Kay Ivey, a Republican, halted all executions in the state and asked the prison system, the Alabama Department of Corrections, to review its procedures. The state resumed executing people in 2023, killing two men by lethal injection.
If the execution goes ahead Thursday evening, Mr. Smith is scheduled to be accompanied in the execution chamber by the Rev. Jeff Hood, a spiritual adviser who has spoken with him regularly over the past two months. Mr. Hood said early Thursday that he had met with Mr. Smith the day before and that he had frequently vomited into a trash can in the jail.
Mr Hood said both he and Mr Smith believe the execution is increasingly likely and are increasingly concerned that trouble could arise.
“We feel like we are walking into a sick, twisted house of horrors,” said Mr. Hood, who met with prison officials in the execution chamber on Wednesday to discuss protocols. “It feels like the longer this goes on, the less we know.”
“Kenny is terrified,” he added. “He's terrified that this thing is going to completely torture him.”
Among the other witnesses to the execution are Mr. Smith's relatives and lawyers, prison officials and five reporters from Alabama. Some relatives of the woman killed in the 1988 stabbing, Elizabeth Sennett, have also indicated they plan to attend.
According to court documents, Ms Sennett was stabbed ten times by Mr Smith and another man during the attack. Her husband, Charles Sennett Sr., had recruited a man to handle her murder, who in turn recruited Mr. Smith and a third man. According to court records, Mr. Sennett arranged the murder in part to collect on an insurance policy he took out on his wife. He had promised the men $1,000 each for the murder.
Mr Sennett later committed suicide; one of the other men involved in the murder was executed by lethal injection in 2010, and the third was sentenced to life in prison and passed away in 2020.
Abbie VanSickle reporting contributed.