Alabama Set to Carry Out First U.S. Execution by Nitrogen

ATMORE, Ala. — Alabama is set to carry out the first U.S. execution using nitrogen gas Thursday evening, potentially opening a new frontier in how states execute death row prisoners despite concerns from death penalty opponents about the untested method.

Several courts, including the U.S. Supreme Court, have allowed the execution to move forward, though lawyers for the condemned prisoner, Kenneth Smith, have made one more last-minute request for the nation’s top court to intervene.

As it stands, prison officials plan to begin the execution around 6 p.m. Central time. Smith, 58, is one of three men convicted in the 1988 murder of a woman whose husband, a pastor, had recruited them to kill her.

The protocol released by prison officials calls for strapping Smith to a gurney in the state’s execution chamber in Atmore, Alabama, after which a mask will be placed on his head and a flow of nitrogen will be released into it, depriving him of oxygen. Smith’s lawyers say it would be the first nitrogen execution in the world. It would be the second time Alabama has tried to kill Smith, after a failed lethal injection in November 2022 in which executioners could not find a suitable vein before his death warrant expired.

Nitrogen hypoxia has been used in some assisted suicides in Europe and elsewhere, though the precise method Alabama is using differs from common practice. Lawyers for the state have argued that death by nitrogen hypoxia, as it is known, is painless, with unconsciousness occurring in a matter of seconds, followed by stoppage of the heart. They also note that Smith and his lawyers have themselves identified the method as preferable to the troubled practice of lethal injection in the state.

Smith’s lawyers contend that Alabama is not adequately prepared to carry out the execution; that a mask — rather than a bag or other enclosure — could allow in enough oxygen to prolong the process and cause Smith to suffer; and that Smith, who has lately experienced frequent nausea, could choke under the mask if he vomits.

A federal appeals court Wednesday night voted 2-1 to allow the execution to go forward.

On Thursday morning, Smith’s lawyers filed another emergency petition with the Supreme Court, a last-ditch effort to spare his life in which they asked the justices to halt the execution in order to consider the latest arguments.

In their petition, Smith’s lawyers argued that Alabama’s plan for his execution, including what they describe as a “one-size-fits-all mask,” would create a substantial risk that he would “be left in a persistent vegetative state, experience a stroke, or asphyxiate on his own vomit.” They identified alternative methods that they said would reduce the risk, including nitrogen hypoxia using a hood or closed chamber, as well as a firing squad.

The Supreme Court already declined to intervene in the lawyers’ appeal of a separate case Wednesday, in which they had argued that trying to execute Smith a second time amounted to unconstitutional cruel and unusual punishment, in part because of how harrowing the failed 2022 execution attempt had been.

Smith’s spiritual adviser, the Rev. Jeff Hood, who will be in the room during the execution, said Smith had spent the morning meeting with family members, one of his lawyers, and Hood. Smith and his mother had their heads close for much of the visit, he said, and there were “a lot of tears.”

He also said Smith had eaten his last meal Thursday morning: a T-bone steak, hash browns and eggs, all from Waffle House and lathered with steak sauce.

Prison officials have said that, in an effort to reduce the likelihood of Smith vomiting during the execution, they would not allow him to eat after 10 a.m.

Hood said that when he met with Smith on Wednesday, Smith had frequently been throwing up in a trash can at the prison and fearing that his nausea could complicate the execution.

“We feel like we’re walking into some sick, twisted house of horrors,” said Hood, who met with prison officials Wednesday in the execution chamber to discuss the protocols. “It feels like the more that this goes along, the less we know.

“Kenny is terrified,” he added. “He’s terrified that this thing is going to completely torture him.”

Smith’s case is unique in part because the jury that convicted him of murder also voted 11-1 to sentence him to life in prison, rather than death, but the judge overruled their decision. Alabama has since made it illegal for judges to overrule juries in imposing the death penalty — a prohibition that now exists in every state — but the new law did not apply to previous cases.

A White House spokesperson on Thursday declined to comment on the execution.

“This is a state-level case, and I won’t speak to the details of this particular case,” said the spokesperson, Olivia Dalton, adding that President Joe Biden has broad concerns about how the death penalty “is implemented and whether or not it’s consistent with our values of fairness and justice.”

Biden campaigned on ending the federal death penalty after it was resurrected by former President Donald Trump. Under Biden, the Justice Department has instituted a moratorium on federal executions, but the department also said this month that it would seek the death penalty against the white gunman who fatally shot 10 Black people in a racist attack at a Buffalo, New York, grocery store.

If Thursday’s execution goes forward without visible problems, it is likely the method would also be examined by other states facing mounting problems obtaining lethal injection drugs from drug companies in the face of pressure from medical groups, activists and lawyers. Mississippi and Oklahoma have authorized their prisons to carry out executions by nitrogen hypoxia if they cannot use lethal injection, though they have never tried to do so.

Nitrogen makes up about 78% of the air on Earth and is normally harmless; oxygen, which makes up about 21%, is essential to human life. But when nitrogen is pumped into an enclosure, or a mask, it can quickly push out the oxygen and lead to rapid unconsciousness and death.

Dr. Philip Nitschke, a pioneer in assisted suicide who estimated that he has witnessed roughly 50 deaths by nitrogen hypoxia, has concurred with Smith’s lawyers in arguing that Alabama’s use of a mask could lead to problems if there is a leak that allows in too much oxygen, prolonging Smith’s suffering. He said he could imagine a range of potential scenarios, from a quick death to one involving substantial distress and pain.

Alabama’s first attempt at the method comes after several botched or difficult executions in which executioners struggled to find veins on the men they were trying to put to death.

In 2022, executioners tried for hours to access the veins of Joe Nathan James, ultimately slicing into one of his arms in what is known as a “cutdown” in order to administer the fatal drugs, according to a private autopsy. Since 2018, three death row prisoners in the state, including Smith, have survived execution attempts because of difficulty inserting intravenous lines.

Four days after failing to execute Smith 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.

In addition to Smith’s spiritual adviser, other witnesses to the execution include Smith’s family members and lawyers, prison officials and five Alabama-based reporters. Some family members of the woman who was killed in the 1988 stabbing, Elizabeth Sennett, have also indicated that they plan to attend. Two of her sons have publicly said they support the execution and view it as long overdue.

Sennett was stabbed 10 times in the attack by Smith and another man, according to court documents. Her husband, Charles Sennett Sr., had recruited a man to handle her killing, who in turn recruited Smith and a third man. Sennett arranged the murder in part to collect on an insurance policy that he had taken out on his wife, according to court records. He had promised the men $1,000 each for the killing.

Sennett later killed himself, 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 died in 2020.

This article originally appeared in The New York Times .