The state of Alabama has set Jan. 25 for the execution of death-row prisoner Kenneth Eugene Smith, slated to suffer the first execution in the country by suffocation from nitrogen gas, despite the fact that appeals in the case are still pending.
Smith’s execution using nitrogen “could amount to torture or other cruel, inhuman or degrading treatment or punishment,” Ravina Shamdasani, United Nations High Commissioner for Human Rights, warned Jan. 15. Smith’s lawyers say authorities are trying to make him a “test subject” for an untried execution method.
Because of the shortage of chemicals required for lethal injections, partially due to their ban in Europe, states are turning to firing squads, hanging and nitrogen suffocation. Officials in Alabama, Mississippi and Oklahoma have authorized the use of nitrogen. Authorities in Nebraska are considering it.
Nitrogen will be administered through a gas mask over Smith’s nose and mouth. The odorless, tasteless and invisible gas supplants any oxygen in Smith’s body, killing him.
Prison authorities attempted to execute Smith in 2022 by lethal injection. They stopped after stabbing him repeatedly with needles for nearly four hours in his arms and hands, and eventually near his heart, unable to set an intravenous line. Smith said the botched execution “felt like a knife” even though he was supposed to have been fully anesthetized. Three U.S. Supreme Court judges called it “torturous.”
Saying his constitutional rights are being violated for attempting to execute him a second time, Smith has an appeal pending with the Alabama Court of Criminal Appeals.
Smith also says that the untested execution protocol could expose him to a “severe risk of a persistent vegetative state, a stroke, or the painful sensation of suffocation” in violation of the Eighth Amendment’s ban on “cruel and unusual punishment.”
Dr. Philip Nitschke, a pioneer in assisted suicide in Europe and Australia, has witnessed at least 50 suicide deaths by nitrogen hypoxia, and invented a nitrogen “pod” for those procedures.
In an interview with the New York Times, Nitschke questioned the use of a mask in Smith’s execution. He said “it could create a higher chance of there being a leak — allowing oxygen in and prolonging the process — than a room, pod or a plastic bag would.”
U.S. District Judge R. Austin Huffaker rejected Smith’s request for a preliminary injunction Jan. 10.
In 2022 the Supreme Court ruled that officials must allow spiritual advisors to pray and lay hands on inmates in the death chamber. Smith’s pastor, Rev. Jeffrey Hood, has filed a lawsuit to halt Smith’s execution, saying it “presents potentially significant dangers to his own life and violates the religious liberties of both himself and Mr. Smith.” For Smith’s execution Hood was required to sign a waiver that he would stand 3 feet away from the prisoner, in case of a nitrogen leak.
Hood told the Times there was a possibility that Smith would physically resist the execution attempt. “When you strap someone down like that, you can’t expect someone who’s choking to death — suffocating to death — to not resist.”
Judge overturns jury decision
Smith, now 58, was first convicted of capital murder and sentenced to death in 1989, at the age of 23.
Smith denied having committed the killing. There was no physical evidence against him, but he was convicted of “aiding and abetting” the murder.
Smith’s conviction and sentence were overturned by an appeals court, finding the state had based challenges to prospective jurors on their race. At his retrial in 1996, Smith was convicted again, but this time the jury voted 11-1 for life imprisonment without parole. The judge overruled the jury, sentencing Smith to death.
In 2017 the state eliminated the power of a judge to override a jury, but the ruling was not made retroactive. Smith remained on death row.
There have been 1,582 executions in the U.S. since 1976 — by electrocution, hanging, firing squads, lethal injection and lethal gasses other than nitrogen.
“The death penalty is part and parcel of the capitalist ‘justice’ system, defended by every administration — from Clinton to Trump to Biden,” John Hawkins, Socialist Workers Party candidate for U.S. Senate from Ohio, told the Militant. “The SWP calls for the abolition of the death penalty, a tool used by the capitalist rulers to terrorize and intimidate working people.”