A prison dorm at Holman Correctional Facility on Oct. 23, 2019. (File/Alabama Reflector)
Alabama’s announcement that it will try to execute Kenneth Eugene Smith by nitrogen gas suffocation will set off a round of issues about the ethics and practicality of using an untested and unproven method of execution.
The Alabama Attorney General’s Office said in an Aug. 25 request to set an execution date for Smith that it was “prepared” to execute Smith “by means of nitrogen hypoxia.”
Alabama, Oklahoma and Mississippi have laws allowing nitrogen executions, but at this point, the procedure remains theoretical. The state would be the first to attempt an execution by the method, but it will likely result in legal challenges.
Messages seeking comment were left with the Alabama attorney general’s office.
Sen. Trip Pittman, R-Montrose, who sponsored the 2018 bill authorizing the method, said in a recent interview that periodic shortages of drugs used in Alabama’s lethal injection procedure led him to search for an alternative execution method that he believed would be more humane.
“I know in a pure nitrogen environment you pass out,” he said. “It is instantaneous. You basically black out. There is no time for pain or anything else. In fact, nitrous oxide is a way of reducing pain for reducing surgeries.”
Pittman likened the situation to the death of professional golfer Payne Stewart, who died in a plane crash in 1999. Investigators said the plane Stewart was in lost pressure and led those on board to experience hypoxia. The plane flew on autopilot until it ran out of fuel and crashed.
“Basically, the people in the plane were never aware they even had an issue and passed out,” Pittman said. “It flew until it ran out of fuel. That is what nitrogen hypoxia has been equated to. You go to sleep. And if you are not removed from that environment, you expire.”
But critics say there is no way to know what will happen in the execution chamber.
“When we talk about sleep, that is a very specific kind of thing, and that has got nothing to do with what is going on here at all,” said Dr. Joel Zivot, an anesthesiologist at Emory University Hospital in Atlanta whose research found evidence of pulmonary edema, a feeling of suffocation or drowning, in the bodies of those executed by lethal injection. “This is death by asphyxiation. This is choking someone to death with a gas. Why anyone would think that would be something pleasant or painless is really beyond my understanding.”
The Alabama Department of Corrections filed a redacted protocol for carrying out nitrogen gas executions in a federal case involving Smith. According to the proposal, the person executed will be fitted with a face-covering mask, connected to gas cylinders, after a check of the equipment by the warden of the prison or assistant warden.
A pulse oximeter, measuring the presence of oxygen, will be placed on the inmate.
Staff will set a device on the inflow of the breathable gas feeding the mask that measures that amount of oxygen the individual is breathing for at least 15 seconds to ensure that breathable air is supplied to the mask.
The mask will then be adjusted to ensure that it fits properly, and staff will be excused from the chamber. The oxygen will then be monitored for two minutes. The spiritual advisor will then be allowed into the chamber, and staff will verify there have been no stays issued and that the execution may proceed.
The warden will verify that all tasks have been completed and enter the execution chamber and read the warrant allowing for the execution and allow the inmate to make a final statement that is limited to two minutes. The warden will then depart the execution chamber.
There will be one final check to verify the execution may proceed, and then the warden will perform some type of action on the nitrogen valve. Staff will inspect the mask one final time and confirm it is properly placed.
The warden will then activate the nitrogen hypoxia system. The flow of nitrogen into the tank will continue for 15 minutes or for two minutes after the EKG machine that measures a person’s heartbeat flatlines.
Struggles with lethal injection
Alabama has used lethal injection as its primary method of lethal injection since 2002. But the state has struggled to carry out executions under the method.
The state’s lethal injection method uses three drugs: a sedative aimed at rendering an inmate unconscious; a paralytic to stop the muscles and a drug that stops the heart. When first introduced, Alabama used sodium thiopental, an anesthetic, to render a condemned inmate unconscious.
But after the United Kingdom banned exports of the drug in 2011 over concerns about its use in executions, the state moved to pentobarbital. But the state exhausted its supply of the drug after 2013.
Alabama then adopted midazolam as the sedative. But midazolam was never designed to render deep unconsciousness, and the drug was present in several botched executions around the country. In 2016, Ronald Bert Smith coughed and gasped during his execution. In 2017, Torrey McNabb grimaced and raised his right arm 20 minutes into his execution.
And in recent years, DOC staff have struggled to administer the drugs directly. Smith, sentenced to death in 1996 for the murder of Elizabeth Sennett in a murder-for-hire plot, was scheduled to die by lethal injection in November. The execution was called off after the DOC ran out of time with repeated failed attempts to find a vein to deliver the lethal cocktail of drugs.
Smith’s execution was the third consecutive botched execution attempt in 2022. That July, Joe Nathan James Jr. was executed after a nearly three-hour delay. The Atlantic later reported that an autopsy of James’ body revealed multiple puncture wounds, suggesting that staff had difficulty finding a vein that is needed to carry out the execution. (Zivot examined James’ body following his execution.)
Death row inmate Alan Eugene Miller’s execution was called off in September 2022 after DOC spent two hours in a futile attempt to establish an IV line to administer the drugs. He later said he was left bleeding while hung vertically on a gurney.
The state executed James Barber this July, with no reported problems.
In the news conference following the execution, ADOC Commissioner John Hamm said the department is working on the protocol to use nitrogen fixation as an execution method and would be available in the coming weeks. DOC declined to comment beyond the protocol.
According to the filing, the portions of the protocol redacted dealt with security, referred to recorded information received by a public officer in confidence, or was deemed detrimental to the public interest. Some of this information could include the identity of the manufacturer of the product used in the execution.
‘It appears … to be experimental’
Medical ethicists said the state is stepping on new and dangerous grounds.
“The protocol is so vague and so unclear that it is almost impossible to know what they are going to do,” said Deborah W. Denno, a law professor at Fordham University and an expert on capital punishment.
Denno responded to the redacted protocol with a 15-point bulleted list of criticisms. She took issue with the missing details. For example, she asked how DOC staff could ensure the nitrogen mask remains in place if the execution team has to leave the room.
Denno also asked about the gas cylinders, about the measuring devices, as well as the medical exam and the criteria that the DOC will use to determine if someone is suitable for execution using nitrogen hypoxia.
“It appears, in my view, to be experimental,” said Arthur L. Caplan, a professor of ethics, bioethics, research ethics, transplantation and health reform at New York University. “There is no standard, agreed upon, protocol, how much to use, how fast to administer it.”
Caplan said Alabama has not acknowledged any medical opinion regarding the protocol. Given the number of botched executions in the state, Caplan wondered if there was a rigorous discussion about using this protocol before it would be applied to people on death row.
Nitrogen gas has been used in the past to euthanize animals. But the American Veterinary Medical Association generally discourages its use and recommends that animals subjected to nitrogen gas be sedated first. Alabama’s nitrogen gas protocol does not indicate if those executed by nitrogen hypoxia will receive any sedation or anesthesia.
Amy Sayward, a professor at Middle Tennessee State University who studies the history of execution, said it’s hard to tell what would happen.
“First of all, we don’t have any actual scientific evidence of what exactly this would be like,” she said. “Even though the Alabama legislator said it would be like on planes.”
Pittman developed the concept of this idea from the state of Oklahoma, another state that passed legislation allowing people to be executed using nitrogen hypoxia.
“There were several studies done by doctors that were done to the process,” Pittman said. “Oklahoma is ahead of us, and those were the studies that I read, prepared by doctors who are, obviously, experts in the field.”
The Alabama Reflector obtained a copy of a research report that was done at the request of Mike Christian, an Oklahoma state representative, by Michael Copeland, Thom Parr and Christine Pappas. The paper states that nitrogen hypoxia would be a humane method to carry out a death sentence, arguing it could lead to a loss of consciousness in eight to 10 seconds. The authors also argued that nitrogen is cheap and plentiful due its use in many fields, such as food preservation and the removal of skin tags in doctors’ offices.
The rationale for using nitrogen hypoxia is that the gas is used harmlessly in many fields and that it is used to extend the life of food products such as potato chips.
But none of the authors who wrote the report listed any medical credentials. The authors included situations related to suicides and loss of oxygen on planes, such as high-altitude pilot training, in the report.
“It is not even a paper, completely unpublished, written by three criminologists without any credentials whatsoever, just doing a review of very old articles on accidental deaths from nitrogen,” Denno said.
Physicians sharply disagreed with the report’s assertion that nitrogen exposure leads to quick death. Those interviewed said that it takes at least four minutes for the brain to shut down.
“I can’t even begin to imagine what it is like to be in the shoes of someone who is facing execution, but to be waiting for that moment, and to know that you are undergoing a method of execution that is not tested and waiting to suffocate, then that seems like that would be an undue amount of suffering,” said Dr. Radha Sadacharan, a practicing family physician.
Physicians also said that passing out due to nitrogen hypoxia is not the same experience as someone undergoing an execution.
“They are getting a mask put over their face that they know is going to kill them,” said Jeff Keller, a physician and president-elect of the American College of Correctional Physicians, who said he was expressing his own opinion on these matters and not the organization. The organization has a policy stating that it is against using physicians in any way to be part of executions.
“They know when the gas is going to be released,” Keller said. “Of course there is going to be suffering. The person is going to panic in their mind, they are going to have anxiety and panic. There is going to be a lot of suffering.”
Zivot said the issue really centers on the legal issues.
“I am waiting for the state to produce evidence that death by nitrogen gas is not cruel, because that is really what the Constitution requires, or even less cruel than lethal injection,” Zivot said
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