Alabama carries out first U.S. execution by nitrogen gas
ATMORE, Ala. – Alabama carried out the first American execution using nitrogen gas Thursday evening, killing a convicted murderer whose jury had voted to spare his life and opening a new frontier in how states execute death row prisoners.
The execution of the condemned prisoner, Kenneth Smith, 58, began at 7:53 p.m. Central time and he was pronounced dead at 8:25 p.m. in an execution chamber in Atmore, according to John Q. Hamm, the state prison system’s commissioner. The Supreme Court allowed the execution to move forward over the objections of its three liberal justices and concerns from death penalty opponents who said that the untested method could cause Smith to suffer.
Smith, who was strapped to a gurney with a mask placed on his head, appeared conscious for several minutes after the nitrogen gas started flowing into the mask, depriving him of oxygen, according to a pool report from five Alabama journalists who witnessed the execution.
He then “shook and writhed” for at least two minutes before beginning to breathe heavily for several minutes. Eventually, they said, his breathing slowed until it was no longer apparent.
Hamm said it looked like Smith had tried to hold his breath as long as he could, and he downplayed Smith’s body movements, saying “nothing was out of the ordinary from what we were expecting.”
Smith was one of three men convicted in the 1988 murder of a woman whose husband, a pastor, had recruited them to kill her.
It was the second time Alabama had 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.
The Supreme Court’s order allowing the execution to go forward did not give an explanation, as is often the case when the justices decide on emergency applications. The court’s three liberal members disagreed with the majority’s decision.
In a strongly worded dissent, Justice Sonia Sotomayor voiced concerns about Alabama’s new method. “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before,” she wrote. “The world is watching.”
Justice Elena Kagan, in a separate dissent joined by Justice Ketanji Brown Jackson, wrote that she would pause the execution to give the court time to examine the “exceptional circumstances” surrounding Alabama’s new method of execution and Smith’s challenges.
“The state’s protocol was developed only recently, and is even now under revision to prevent Smith from choking on his own vomit,” Kagan wrote.
Nitrogen hypoxia, as the method is known, has been used in some assisted suicides in Europe and elsewhere, though the precise method that Alabama used 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 contended that Alabama was not adequately prepared to carry out the execution, that a mask – rather than a bag or other enclosure – might theoretically 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 vomited.
Gov. Kay Ivey said in a statement that she had chosen not to exercise her clemency power to spare Smith.
“The execution was lawfully carried out by nitrogen hypoxia, the method previously requested by Smith as an alternative to lethal injection,” Ivey said. “At long last, Smith got what he asked for, and this case can finally be put to rest.”
Alabama officials said the nitrogen gas process had proved to be effective and humane.
“Tonight also marked the first time in the nation – and the world – that nitrogen hypoxia was used as the method of execution,” Alabama Attorney General Steve Marshall said in a statement, adding that predictions of possible problems had proved “speculative.”
“Our proven method offers a blueprint for other states and a warning to those who would contemplate shedding innocent blood,” he added.
In their last-ditch petition to get the Supreme Court to intervene, 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.”
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, has said that Alabama’s use of a mask could lead to problems if there was a leak that allowed in too much oxygen. He said he could imagine a range of potential scenarios, from a quick death to one involving substantial distress and pain.
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 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 that have recommended a life sentence – a prohibition that now exists in every state – but the new law did not apply to previous cases.
Smith’s spiritual adviser, the Rev. Jeff Hood, was in the room during the execution. He said earlier Thursday that 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 slathered with steak sauce.
Prison officials said that, in an effort to reduce the likelihood of Smith vomiting during the execution, he would not be permitted to eat after 10 a.m.
The execution took place in a rural stretch of southern Alabama about an hour’s drive northeast of Mobile, near the Florida border. Police officers blocked off the road to the William C. Holman prison, where the execution took place, and it was shrouded by trees, out of view from the highway nearby.
A handful of anti-death penalty protesters gathered for a time at a designated protest zone nearby, but the dirt road was quickly pockmarked with muddy puddles after a stretch of strong rain.
Before the execution Thursday, a White House spokesperson declined to comment on it.
“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 grocery store.
Thursday’s execution raised the possibility that the method would also be examined by other states facing mounting problems obtaining lethal injection drugs from drug companies because 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.
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, the scheduled witnesses to the execution included 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, had also indicated that they planned to attend. Two of her sons had publicly said they supported the execution and viewed 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.