In a 6-to-2 ruling, the Alabama Supreme Court said the state can execute an inmate with nitrogen gas, a method that has not previously been used carry out a death sentence.
The court granted the state attorney general’s request for an execution warrant for contract killer Kenneth Eugene Smith. The attorney general of Alabama had indicated in filings with the court that the state intends to use nitrogen to put Smith to death. The specific date of the execution will be set later by Alabama Governor Kay Ivey.
The decision moves Alabama closer to being the first state to execute a criminal with nitrogen gas, although Smith’s lawyers are likely to file a federal lawsuit as well over the proposed execution method. Three states — Alabama, Oklahoma and Mississippi — have authorized nitrogen hypoxia as an execution method but no state has used it yet.
As NBC News reports:
Smith was one of two men convicted in the 1988 murder-for-hire slaying of Elizabeth Sennett in Alabama’s Colbert County.
Lawyers for Smith had urged the court to reject the execution request.
“The state seeks to make Mr. Smith the test subject for the first ever attempted execution by an untested and only recently released protocol for executing condemned people by the novel method of nitrogen hypoxia,” Smith’s attorneys wrote in a September court filing.
Under the proposed method, the inmate would be forced to breathe only nitrogen, depriving them of oxygen needed to maintain bodily functions and causing them to die. Nitrogen makes up 78% of the air inhaled by humans and is harmless when inhaled with oxygen. While proponents of the new method have theorized it would be painless, opponents have likened it to human experimentation.
The state unsuccessfully attempted to put Smith to death by lethal injection last year. The Alabama Department of Corrections called off the execution when the execution team could not get the required two intravenous lines connected to Smith.
Nitrogen pods have just been invented that will make it easier for terminally-ill people to kill themselves. The pods could easily be adapted to execute murderers. States will find this alternative way of executing criminals helpful, because it’s now hard to carry out execution by lethal injection, as the chemicals needed for lethal injections become more difficult to obtain.
The New York Post reported earlier that a controversial ‘suicide pod’ that ‘kills peacefully’ got the go-ahead in Switzerland:
A coffin-like capsule that allows people to end their life could be used in Switzerland from next year, its creators say. The Sarco suicide pod allows a user to lie down and activate the process themselves within a matter of minutes. Individuals are asked a series of questions before they can press a button, which brings oxygen down to a critical level. Nitrogen fills the 3D-printed device, quickly bringing oxygen down from 21 percent to only 1 percent in about 30 seconds. A “disorientated” and “euphoric” feeling then follows, before they eventually lose consciousness. Death takes place due to hypoxia (low oxygen in the body’s tissues) and hypocapnia (reduced carbon dioxide in the blood), followed by critical oxygen and carbon dioxide deprivation.
Dr. Philip Nitschke, whose Exit International organization came up with the capsule, told local media there is “no panic, no choking feeling”. “The machine can be towed anywhere for the death,” he said. “It can be in an idyllic outdoor setting or in the premises of an assisted suicide organization, for example.”
Nitrogen pods will also be an easy, alternative way of executing criminals. That’s important, because states have found it more and more difficult to obtain the chemicals needed to give inmates lethal injections. Multinational companies have refused to sell states like Missouri the lethal injection drug pentobarbital, as regulators, activists, and foreign governments pressure them not to assist with executions.
As the Washington Post noted in 2019,
states have struggled in recent years to obtain drugs for lethal injections, which remain the country’s primary method of execution even as the number of executions has declined.
In 2015, the FDA blocked Texas from importing shipments of an anesthetic from an overseas distributor, finalizing the decision two years later. The agency argued the importation was illegal because the drug, sodium thiopental, was not approved in the United States and was improperly labeled. It also cited a 2012 federal injunction barring the agency from allowing the drug’s importation.
Texas responded to the FDA’s move by suing the agency in early 2017, claiming the agency was interfering with the state’s responsibility to carry out its law enforcement duties. The lawsuit was filed shortly before President Trump took office. Trump has long been a supporter of capital punishment. while his Senate-confirmed attorneys general — Jeff Sessions, who left the post last year, and William P. Barr, who assumed the job this year — have also backed the practice.
[A] legal opinion from the Justice Department this month sides against the FDA and with Texas.
