After submitting Kenneth Eugene Smith to a failed lethal-injection execution in 2022, the state is now preparing to try again, this time with a novel method.
This past August, officials at William C. Holman Correctional Facility distributed copies of Alabama’s execution protocol to the 165 prisoners of death row. A signature from each man was required to confirm receipt of the protocol, which contained an entirely new section devoted to death by nitrogen hypoxia, a novel and untested execution method that the state intends to try this Thursday. The subject of the Alabama Department of Corrections’ experimentation will be Kenneth Eugene Smith, who survived an attempted execution by lethal injection in November 2022.
Elizabeth Bruenig: Alabama’s history of violence
Nitrogen hypoxia as an execution method is credited to a California screenwriter by the name of Stuart Creque (author of the science-fiction and horror films The Last Earth Girl, He Knows, and Memento Mori), who wrote a 1995 National Review article suggesting the technique for its humanity and simplicity. Creque followed up on his original essay in The Wall Street Journal last year, praising officials in Alabama for preparing to realize his proposal. “Nitrogen anoxia is painless,” Creque wrote, basing his analysis on the details of industrial accidents involving the gas. “It requires no drugs, poisons or medical procedures, and its effects are well-understood, consistent and reliable. Its first symptom is loss of consciousness.”
But Creque presumes a great deal about execution by nitrogen hypoxia that isn’t yet in evidence. States can’t simply re-create the conditions of industrial accidents in order to kill their prisoners. Although three states have laws permitting the use of nitrogen hypoxia, Alabama is the first to produce a (well-redacted) protocol for carrying it out. The document emerged in court filings last year, shedding some light on what Alabama intends to do. “Yet, at no time does Alabama ever state, step-by-step, how such a nitrogen hypoxia execution shall proceed,” Fordham University law professor Deborah Denno told me. “The reader only deduces the procedure that executioners will use by way of heavily redacted depictions of what will occur.” Denno pointed out that the protocol leaves unclear the hazards of nitrogen hypoxia to execution staff, the nature of safety equipment, the specific machinery and equipment, and the duties of correctional officials tasked with carrying out the execution. “What does become clear is that this system is potentially dangerous to executioners and witnesses and that definite steps must be followed to ensure no one is exposed to danger,” Denno said. The Department of Corrections did not respond to a request for comment.
There is reason to doubt that Alabama will be able to pull off the world’s first execution by nitrogen gas flawlessly. In 2022, the state botched three executions by lethal injection in a row, including Smith’s. In only one of the three cases—the execution of Joe Nathan James Jr. —did the prisoner in question actually die. The state subsequently executed two men by lethal injection in 2023, without releasing the results of an internal review of execution procedures conducted by ADOC. However it plays out, this execution will be an experiment, and Smith will be its human subject.
Legal filings have produced clues about what America’s first gas execution in 24 years might look like. (America’s last gas execution transpired in 1999 courtesy of the state of Arizona—a 37-year-old prisoner named Walter LaGrand was strapped into a sealed chamber full of cyanide gas and left to die of its effects. Alabama, meanwhile, intends to use a typically harmless nitrogen gas pumped through a mask to displace enough oxygen to kill Smith.)
At the close of 2023, ADOC filed an affidavit from Cynthia Stewart, a regional director for the agency, as part of its ongoing legal battle with Smith. Stewart spoke as an expert on the contraption the state plans to use to suffocate Smith with nitrogen gas, detailing the mask that will be affixed to Smith’s face with a five-point harness for the duration of the execution. According to Stewart, the mask fits a wide range of wearers and allows them to speak audibly through the plastic. It will be sealed to Smith “immediately after he has been taken to the execution chamber,” in part because that’s when the greatest number of correctional officers are present, which “ensures that the mask can be properly sealed even if the inmate becomes combative.” If ADOC’s custom execution machine works perfectly, pure nitrogen gas will flood Smith’s lungs, displacing enough oxygen to suffocate him.
Elizabeth Bruenig: Alabama makes plans to gas its prisoners
But if the contraption fails, the consequences could be severe. In a safety bulletin issued by the Chemical Safety Board, the federal agency warns that “breathing an oxygen-deficient atmosphere can have serious and immediate effects, including unconsciousness after only one or two breaths. The exposed person has no warning and cannot sense that the oxygen level is too low.” The Occupational Safety and Health Administration requires workplaces to maintain oxygen levels between 19.5 and 23.5 percent. If the seal on the execution mask does not adhere properly, or if a valve on the gas-delivery mechanism detaches, staff in the execution chamber may be at risk of injury or worse. Although ADOC claims to have placed oxygen monitors in the execution chamber to guard against such a disaster, plans to test these monitors were not included in its protocol.
Attorneys for Smith argue that nitrogen hypoxia as roughly sketched by Alabama represents significant risk of pain and suffering to their client. “Specifically,” they wrote in a post-hearing brief filed on December 29, “ADOC’s plan to deliver nitrogen gas to Mr. Smith through a mask that is placed over his face subjects him to a substantial risk that (1) oxygen will infiltrate the mask, which could leave Mr. Smith in a persistent vegetative [state], cause him to have a stroke, or to experience the sensation of suffocation, and (2) he will asphyxiate on his own vomit.” According to an expert witness, Robert Jason Yong, an anesthesiologist affiliated with Brigham and Women’s Hospital, in Boston, as well as Harvard Medical School, exposure to less than 100 percent nitrogen—such as through an improperly sealed mask—could have disastrous results for Smith beyond the suffering associated with death itself. In their brief, Smith’s attorneys point out that even the expert physician called by the state agreed that Smith could suffer brain damage, a stroke, or a persistent vegetative state as part of the nitrogen-hypoxia process.
Execution methods and their particular hazards matter. No prisoner should be subjected to cruel and unusual punishment. Yet the execution itself is merely the end of a long process of what can fairly be described as torture: life under the imminent threat of death. Smith has already endured every stage of a state-sponsored killing. Alabama intends not only to have him repeat the whole nightmare, but to add in an element of human experimentation. Whatever happens to Smith in the chamber, his suffering will have long preceded it.
Alabama Gets Ready for Its Gas Execution Experiment
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22.01.2024
After submitting Kenneth Eugene Smith to a failed lethal-injection execution in 2022, the state is now preparing to try again, this time with a novel method.
This past August, officials at William C. Holman Correctional Facility distributed copies of Alabama’s execution protocol to the 165 prisoners of death row. A signature from each man was required to confirm receipt of the protocol, which contained an entirely new section devoted to death by nitrogen hypoxia, a novel and untested execution method that the state intends to try this Thursday. The subject of the Alabama Department of Corrections’ experimentation will be Kenneth Eugene Smith, who survived an attempted execution by lethal injection in November 2022.
Elizabeth Bruenig: Alabama’s history of violence
Nitrogen hypoxia as an execution method is credited to a California screenwriter by the name of Stuart Creque (author of the science-fiction and horror films The Last Earth Girl, He Knows, and Memento Mori), who wrote a 1995 National Review article suggesting the technique for its humanity and simplicity. Creque followed up on his original essay in The Wall Street Journal last year, praising officials in Alabama for preparing to realize his proposal. “Nitrogen anoxia is painless,” Creque wrote, basing his analysis on the details of industrial accidents involving the gas. “It requires no drugs, poisons or medical procedures, and its effects are well-understood, consistent and reliable. Its first symptom is loss of consciousness.”
But Creque presumes a great deal about execution by nitrogen hypoxia that isn’t yet in evidence. States can’t simply re-create the conditions of industrial accidents in order to kill their prisoners. Although three states have laws permitting the use of........
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