Outcry after Supreme Court allows Alabama to conduct nitrogen execution: “Its ‘guinea pig’ to test”

The European Union, the United Nations and a number of current and former United States and state officials are decrying the execution of Alabama inmate Kenneth Smith, who was put to death via nitrogen hypoxia Thursday night, the nation’s first known use of the execution method.

According to CNN, Smith, 58, received a death sentence after participating in a 1988 murder for hire. In 2022, Smith remarkably survived the first attempt to execute him by lethal injection. His attorneys sought to halt the execution but lost a final appeal to the U.S. Supreme Court Thursday evening. They, alongside experts and advocates, expressed concern that nitrogen hypoxia would cause excessive pain and even constitute torture.

The execution began at 7:53 p.m. central time Thursday, and Smith was pronounced dead at 8:25 p.m., Alabama Department of Corrections officials said. Nitrogen flowed for around 15 minutes, according to state corrections commissioner John Hamm. 

How long it took for Smith to die is unclear, CNN reported. 

Media witnesses, in a joint report, said that Smith, who was strapped to a gurney and wore a tight mask that covered his whole face, appeared conscious for “several minutes into the execution,” then “shook and writhed” for about two minutes before breathing deeply for several more minutes. His breath eventually slowed to the point “it was no longer perceptible for media witnesses,” they said.

Asked about Smith’s shaking at the start of the execution, Hamm said during a news conference that Smith appeared to be holding his breath “for as long as he could” and possibly also “struggled against his restraints.”

“There was some involuntary movement and some agonal breathing, so that was all expected and is in the side effects that we’ve seen and researched on nitrogen hypoxia,” Hamm said, referring to an irregular breathing pattern that can occur as someone nears death. “So nothing was out of the ordinary of what we were expecting.”

Smith’s spiritual advisor, the Rev. Jeff Hood described the execution at “the most horrible thing I’ve ever seen.”

“It was absolutely horrific,” Hood told CNN, describing how Smith convulsed when the nitrogen began to flow, repeatedly “popped up on the gurney,” and heaved, spat and gasped for air. 

In a lengthy statement to the witnesses before his execution, Smith said, in part, that “Alabama caused humanity to take a step backward,” according to reporters who witnessed the execution.

“I’m leaving with love, peace and light. Thank you for supporting me. Love all of you,” he reportedly said. Smith also “made a ‘I love you’ sign in sign language with one of his hands that was facing the room where his family was witnessing,” the journalists’ report said. 

Supporters of the nitrogen hypoxia method argue it should be painless, often pointing to the gas’ role in deadly industrial accidents or suicides. The state said in court records that it believes the method is “perhaps the most humane method of execution ever devised” but did not provide any evidence to back the claim. 

Opponents expressed concerns that the method could go wrong and that the state’s plan up until the day of the execution had been kept under wraps. The protocol Alabama published featured a number of redactions that experts told CNN hid key details from the public.

The family of Smith’s victim, Elizabeth Sennet, called the execution “bittersweet,” viewing it as one last act of justice for the woman, whose husband in 1988 hired someone who hired Smith and another person to kill his wife and make it look like a burglary, court records show.

“Nothing that happened here today is going to bring mom back,” Sennett’s son, Michael, said after the execution. But, he added, “we’re glad this day is over.”

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

The EU and U.N. Human Rights Office expressed regret over the execution, both saying that the death penalty infringes on the right to life and does not prevent crime, according to The Hill.  

“He was writhing and clearly suffering,” said Ravina Shamdasani, a U.N. Human Rights Office spokesperson. “Rather than looking for novel, untested methods to execute people, let’s just bring an end to the death penalty. This is an anachronism that doesn’t belong in the 21st century.”

The diplomatic service of the EU said in a statement that “this method is a particularly cruel and unusual punishment,” citing leading experts.

In a dissenting opinion authored by Supreme Court Justice Sonia Sotomayor, who was one of three justices who dissented to Smith’s execution — the others being Justices Ketanji Brown Jackson and Elena Kagan — she noted that the nitrogen hypoxia method was “untested.”

“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,” Sotomayor wrote. “The world is watching. This Court yet again permits Alabama to ‘experiment … with a human life,’ while depriving Smith of ‘meaningful discovery’ on meritorious constitutional claims.”

Sotomayor added that she was dissenting with “deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment.”

Bryan Stevenson, the executive director of Alabama nonprofit the Equal Justice Initiative, described Smith’s execution as cruel and unusual in nature and discussed the injustice of the death penalty during an appearance on CNN Thursday night.

The threshold question regarding the death penalty, Stevenson told anchor Laura Coates, isn’t whether a person “deserves to die” for a crime committed, but rather if “we deserve to kill.”

“In our society, we don’t rape people who rape. We don’t torture people who torture. That’s because we believe that the integrity of the law means that we have to do better than the worst offenders in our society,” the public interest attorney said. 

“It’s not enough to say this person committed a violent crime, and I don’t think we have a system that is consistently and fairly and reliably carried out the death penalty … And that’s what creates the Eight Amendment questions,” Stevenson continued, noting that the jury that convicted Smith returned a verdict of life that the elected judge later overrode to sentence Smith with death.

Elected officials and other legal experts also spoke out against nitrogen hypoxia and the death penalty Thursday in response to Smith’s execution, with Pennsylvania Gov. Josh Shapiro, D, reaffirming his commitment to not signing a death warrant in the Commonwealth.

“In my first months in office, I announced I would not sign a death warrant during my time as Governor of Pennsylvania,” Shapiro wrote on X, formerly Twitter. “My position evolved over years of listening and learning — and I came to decide that our justice system is fallible, and the outcome of the death penalty is irreversible.”

“Absolutely unconscionable,” posted Rep. Ayanna Pressley, D-Mass., before Smith’s execution. “We must work to abolish the death penalty and end this cruel and inhumane punishment.”

“The death penalty isn’t justice, it’s vengeance,” added former Ohio state Sen. Nina Turner, D, who is a senior fellow at the New School’s Institute of Race, Power and Political Economy. “We have ways to guarantee offenders won’t offend again. The death penalty is murder by the state and it’s must end.”

“Whether or not you support the death penalty, this execution established that nitrogen is no way to do it,” former U.S. Attorney Joyce Vance said on X. “Alabama must discontinue.”

Alabama, Oklahoma and Mississippi are the only states that have approved the method of execution, which replaces the oxygen in a person’s body with nitrogen, leading to death. Alabama, however, is the only of three to have used the method or defined a protocol for carrying it out, CNN reports. 


Leave a Reply

Skip to toolbar