A death row inmate was Thursday executed using a novel method. Why have authorities in Alabama used nitrogen gas, and why is it controversial?
Kenneth Eugene Smith was originally scheduled to be put to death with deadly drugs in November 2022.
Prison staff inserted one intravenous line, but two lines were required to administer the lethal injection.
After they struggled for an hour to insert the second IV, the execution was called off.
But Smith – who was convicted of the murder-for-hire of a preacher’s wife in 1988 – was eventually executed using nitrogen gas instead.
Smith, 58, lost two final appeals to the Supreme Court and one to a federal appeals court, arguing the execution was a cruel and unusual punishment.
He was convicted in 1989 of murdering a preacher’s wife, Elizabeth Sennett, in a killing-for-hire.
According to the Death Penalty Information Center, Smith is also the first person to be put to death using pure nitrogen gas anywhere in the world.
Alabama and two other US states have approved the use of nitrogen hypoxia as an alternative method of execution because the drugs used in lethal injections have become more difficult to find, contributing to a fall in the use of the death penalty nationally.
Five members of the media were transported by van to Holman Correctional Facility in Atmore to witness the execution.
“Tonight Alabama causes humanity to take a step backwards,” Smith said, according to witnesses. “Thank you for supporting me. Love all of you.”
After the gas began to flow into his mask, the inmate is said to have smiled, nodded toward his family and signed “I love you”.
Witnesses observed two to four minutes of writhing and about five minutes of heavy breathing before he died. Breathing nitrogen without oxygen causes the cells to break down and leads to death.
Alabama Governor Kay Ivey, who did not respond to a request to attend the execution, confirmed Smith’s death in a statement.
“After more than 30 years and attempt after attempt to game the system, Mr Smith has answered for his horrendous crimes,” she said.
“I pray that Elizabeth Sennett’s family can receive closure after all these years dealing with that great loss.”
Attorney General Steve Marshall said it had proved to be “an effective and humane method of execution”, refuting the “dire predictions” of activists and the media.
“Justice has been served,” his statement added.
Alabama said in an earlier court filing that it expected Smith to lose consciousness within seconds and die in a matter of minutes.
Smith was one of two men convicted of murdering Mrs Sennett in a $1,000 (£790) killing-for-hire in March 1988.
The 45-year-old was beaten with a fireplace implement and stabbed in the chest and neck, and her death was staged to look like a home invasion and burglary.
Her husband Charles Sennett, a debt-ridden preacher, had orchestrated the scheme to collect insurance money. He killed himself as investigators closed in.
Smith’s fellow hitman, John Forrest Parker, was executed in 2010.
At his trial Smith admitted to being present when the victim was killed, but said he did not take part in the attack.
In a statement, Smith’s legal team said it was “deeply saddened” by his execution, noting that the jury in his case had voted to spare his life but a judge overrode that decision.
“Nothing can undo the tragic consequences of the actions for which he was convicted, including the pain of the Sennett family and friends,” the attorneys said.
“Kenny’s life, however, should be considered in its full context.”
Earlier on Thursday, the Alabama Department of Corrections shared details from the inmate’s final 48 hours.
Smith was visited by members of his family, two friends, his spiritual adviser and his attorney.
He had a breakfast of two biscuits, eggs, grape jelly, applesauce and orange juice.
His final meal was steak and eggs with hash browns.
Alabama tried to execute Smith by lethal injection two years ago, but they were unable to raise a vein before the state’s death warrant expired.
On Thursday night, the Supreme Court denied him a last-minute reprieve.
Three liberal justices dissented from the conservative-led majority’s ruling.
“Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never tested before,” Justice Sonia Sotomayor wrote. “The world is watching.”
That decision came a day after the Supreme Court declined to take up another challenge by Smith.
The nitrogen execution had been denounced by some medical professionals, who warned it could cause a range of catastrophic mishaps, ranging from violent convulsions to survival in a vegetative state.
It’s a controversial method that had never been used before by a US state.
And it represents the latest step in the search for a new way to execute convicted criminals – even as the death penalty has become less popular over time.
The problems with lethal injection
Around half of US states still have death penalty laws. Execution methods vary, but some states still allow execution by hanging, firing squad or the electric chair.
According to the Death Penalty Information Center (DPIC), a not-for-profit organisation that is critical of how executions are administered, no method has been found to violate the US Constitution’s ban on “cruel and unusual punishments”, although some state courts have outlawed some methods.
In recent decades, however, most states have converged on lethal injection – the administration of intravenous drugs that sedate and kill the convict – as the main execution method.
Texas was the first state to execute a convicted criminal with lethal injection, in 1982.
Last year, 24 people were executed in the US – most of those in Florida and Texas, and all by lethal injection.
The process, however, is not always straightforward. Several months prior to Smith’s previous botched execution, Alabama authorities failed to put to death another death row inmate, Alan Miller, also because of difficulties inserting an IV needle. Several other lethal injection executions have also not gone according to plan.
And states have recently had difficulty in obtaining lethal injection drugs. In some cases, drug manufacturers won’t sell them, or no longer produce them.
The UK and the European Union banned exports of the chemicals in 2011, and five years later American drugs giant Pfizer, the last open-market source of lethal injection drugs, announced it would no longer sell them to be used in executions.
The result is that states have been scrambling for other ways to execute prisoners.
Texas, for instance has sourced its deadly chemicals from a secret list of private “compounding pharmacies”, which mix their own drugs.
What is nitrogen hypoxia?
Prison officials strapped a mask to Smith’s face and administered the pure nitrogen gas.
The gas itself is not poisonous – nitrogen makes up more than three-quarters of the earth’s atmosphere.
But in pure concentrated form, breathing in the gas chokes off oxygen to the brain, a process called nitrogen hypoxia.
The use of nitrogen gas in executions has been approved by three states, including Alabama in 2018, and has withstood various legal challenges since.
But critics of the procedure say that method is untested and unproven.
“It’s an experimental procedure,” says Dr Jeff Keller, President of the American College of Correctional Physicians. “Many things can go wrong.”
Deborah Denno, a criminologist at Fordham Law School who specialises in research into death penalty methods, said the procedure “is supposed to be painless”.
“But I have to emphasise – that’s in theory,” she says.
“These masks don’t usually don’t fit people,” she says. “They’re not airtight, air can get in.”
Smith could have started vomiting or survived the attempted execution with brain damage, she says.
Proponents of the method reject criticism and point to examples of nitrogen hypoxia occurring in industrial accidents, with victims apparently becoming unaware of what is happening to them.
One study prepared for Oklahoma lawmakers considering whether to allow nitrogen gas executions cited research that concluded “without oxygen present, inhalation of only 12 breaths of pure nitrogen will cause a sudden loss of consciousness”.
Alabama State Attorney General Steve Marshall has called nitrogen gas “perhaps the most humane method of execution ever devised”.
On Wednesday the US Supreme Court declined to hear Smith’s legal challenge contending that attempting to execute him a second time violated his constitutional rights.
Unpopular sentence
The flurry of attention over Smith’s execution comes as enthusiasm for the death penalty has ebbed across much of the US.
The number of executions is down substantially from a peak of 98 in 1999, according to the DPIC.
Not only are fewer death sentences being carried out, in fewer states – just 10 have executed a prisoner in the last decade – but fewer death penalties are being handed out by courts.
“We’ve seen a big change in American support for the death penalty,” says Robin Maher, the DPIC’s executive director.
Polling organization Gallup, which has been tracking public attitudes towards the death penalty for nearly a century, says that 53% of Americans favour the death penalty for convicted murders.
That figure is down from a high of 80% which the survey registered 30 years ago.
Ms Maher says a variety of factors resulted in the death penalty becoming less common – not only botched executions, but nearly 200 exonerations of death row inmates, legal changes which prohibit mentally impaired people and juveniles from being put to death, and the increasing reluctance of juries to hand down death sentences.
“I expect that trend will continue,” she says.
By BBC News
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