Alabama nitrogen hypocrisy: America’s latest fantasy death-penalty solution


The state of Alabama now says it is ready to try again to put Kenneth Smith to death. Smith has twice been convicted of murdering a woman named Elizabeth Sennett in 1988, in an apparent contract killing arranged by her husband.. 

On Nov. 17, 2022, Alabama officials tried to execute Smith by lethal injection, but were forced to abandon the attempt when the execution team failed repeatedly to insert the IV necessary to carry the lethal chemicals. That was the third time since 2018 that the state had failed to complete an execution.

Last week, Alabama Attorney General Steve Marshall asked the state Supreme Court to set a new execution date for Smith. In an added twist to the Smith saga, Marshall told the court that this time the state intends to put him to death by nitrogen hypoxia, which Alabama added to its execution menu in 2018

Unlike virtually all other nations that use capital punishment, which stick to one consistent method of execution, the U.S. has, for more than a century, engaged in a restless quest to find ever better ways to kill those who are sentenced to death. Since 1900, various states have carried out executions by hanging, electrocution, firing squad, the gas chamber and lethal injection. 

Now Alabama intends to add nitrogen hypoxia to the list. 

According to a report in the Guardian, Alabama state Sen. Trip Pittman described nitrogen hypoxia as a “more humane option” for putting condemned prisoners to death. Pittman compared the method to the way that passengers on a plane may pass out when the aircraft depressurizes. 

Unlike other nations that use capital punishment, the U.S. has, for more than a century, engaged in a restless quest to find ever better ways to kill people who are sentenced to death.

Michael Copeland, one of the country’s leading proponents of nitrogen hypoxia as an execution method, anticipated this claim several years ago in testimony before the Oklahoma legislature. He told the lawmakers that it would be a painless way to put someone to death. 

“The condemned person,” Copeland argued, “might not even know when the switch to pure nitrogen occurs, instead he would simply lose consciousness about 15 seconds after the switch was made. Approximately 30 seconds later, he would stop producing brain waves, and the heart would stop beating about two to three minutes after that.”

Humane, painless and quick — these are the words used every time death penalty supporters market a new execution method. With the invention of new technologies for killing or, more precisely, with each new application of technology to killing, they have proclaimed previous methods to be barbaric, or simply archaic, and have promised a vastly improved solution. 

For example, in the 1880s as New York considered replacing hanging with the electric chair, proponents assured state officials that “The velocity of the electric current is so great that the brain is paralyzed; is indeed dead before the nerves can communicate a sense of shock.” They estimated that “the interval necessary for nerve communication with the brain at one-tenth of a second” and “that the electric discharge occurs in one-hundred-thousandth of a second, or 10,000 times more rapidly than nerve transmission.” 

In the early part of the 20th century, when states began to consider the gas chamber as an alternative to the noose and the electric chair, proponents claimed that it would produce death “without preliminaries” and “without the possibility of accidents.” They said it would “leave the criminal little more to dread of the future than the common lot of all mankind.” 

And in 1977, when Oklahoma led the way in adopting lethal injection, its legislative sponsors assured their colleagues that executions by lethal injection could be accomplished with “no struggle, no stench, no pain.” Such assurances have led judges and others to conclude that “lethal injection is at present the most humane type of execution available and is far preferable to the sometimes barbaric means employed in the past.”

But these repeated promises have turned out to be hollow, without exception. 

If Alabama goes forward with its plan, Kenneth Smith will join a dubious list that includes William Kemmler, Gee Jon and Charles Brooks Jr., the first people executed by electrocution, gas chamber and lethal injection, respectively.

None of the advertised virtues of those execution methods have been realized in practice. Each new and supposedly improved method has had its crippling flaws and the record of botched executions using each method has left a trail of gruesome suffering in America’s execution chambers. 

That trail of suffering began the first time each new execution method was used.

If Alabama goes forward with its plan to kill Smith with nitrogen hypoxia, he would become the first person in the United States executed in this manner. He would join William Kemmler, Gee Jon and Charles Brooks Jr. as people with the dubious distinction of being the first to die by each new method of execution introduced over the last 125 years. 

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Kemmler was the first person executed in the electric chair, Gee was the first to die in the gas chamber and Brooks was the first to die by lethal injection. Each was also the first whose execution was botched using those respective methods.

Before his August 1890 execution in Auburn, New York, Kemmler gave a short speech in which he wished everyone good luck. Then, according to a contemporaneous report, “Kemmler easily settled back into the chair … turned calmly to the Warden and in such tones as one might speak to a barber who was shaving him, said calmly: ‘Now take your time and do it all right, Warden. There is no rush. I don’t want to take any chances on this thing, you know?'” 

When the straps around Kemmler’s body, face, arms and legs were properly in place, the warden ordered the electric current turned on. A moment later, Kemmler’s body first convulsed and then became rigid as the electricity streamed through him. 

The current was switched off, and Kemmler was checked by the attending physician. He was not dead. Sometime after he received the first shock, Kemmler began to drool, his chest heaved and he made strange noises. The warden ordered the execution to resume. 

But this time, as the electricity pulsed through Kemmler’s body, white smoke appeared and a “pungent and sickening odor” filled the death chamber. The execution lasted a total of eight minutes, and for more than half that time Kemmler received electric shocks of up to 2,000 volts.

In the case of Gee Jon, a Chinese national executed in Carson City, Nevada, in 1924, officials first tried to pump cyanide gas into his cell while he slept, but this proved impossible. His death in the gas chamber that was subsequently built was not pretty: He suffocated in a toxic cloud of poison air, and witnesses could faintly smell the gas as it leaked from the chamber.

Brooks, who was executed in Huntsville, Texas, in 1982, had been led to believe that lethal injection would produce a calm, painless, almost soothing death. But this first lethal injection was none of those things. 

In a scene foreshadowing what Smith would experience four decades later when Alabama first tried to execute him, three technicians repeatedly failed in their efforts to insert an IV into a vein in Brooks’ arm — splattering blood onto the sheet covering his body. During the several minutes it took for the drugs to take effect, Brooks reportedly looked forward in terror and let out a harsh rasp.

Unlike Kemmler, Gee and Brooks, Kenneth Smith was offered a choice of the execution method used to kill him. Smith said he would prefer to take his chances with nitrogen hypoxia. Given the horrors that inmates in Alabama and other death penalty states have experienced during recent lethal-injection executions, it is understandable that he would want to avoid dying by that method.

But nitrogen hypoxia, like electrocution, the gas chamber and lethal injection, is unlikely to deliver on its proponents’ promises. As Joel Zivot, an anesthesiology and death penalty expert, puts it, “I think the nitrogen gas will not work … because even though the gas is inert, breathing it is going to be much more complicated and getting people to cooperate to breathe will be complicated.”

Alabama’s intended approach to killing Kenneth Smith promises to be just the latest episode in America’s recurring dark dream of finding and perfecting an execution method that can deliver a dignified death. Whatever happens to Smith, it is long past time that we wake up and leave that dream behind us. 

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from Austin Sarat on crime and punishment


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