Alabama’s plan to be the first state to use nitrogen gas to execute a convicted murderer has been criticised by activists who say it is “risky” and would be “mental torture” for the accused.
Kenneth Eugene Smith, who was convicted in the 1989 killing of Elizabeth Sennet, is due to be put to death on Thursday after the courts declined to halt the execution.
Opponents have cited several reasons that the killing should not go ahead, with the state having a history of botched executions – including a previous attempt with Smith – and concerns the untested method could mean a painful death.
The case is being closely watched around the world, with states that use the death penalty scrambling for alternative methods as drugs needed for lethal injections become harder to access.
Abraham J. Bonowitz, director of Death Penalty Action, told i: “Alabama’s capital punishment system as a whole is broken and cannot be trusted to get it right.”
Alabama first tried to execute Smith in 2022 by lethal injection, but aborted the attempt after hours of failed efforts to insert an intravenous line into his collarbone area. Smith’s lawyers characterised the experience as torture and said it “exposed him to the severe mental anguish of a mock execution”.
The US Supreme Court on Wednesday rejected Smith’s argument that it would be unconstitutional to try to execute him again after the failed first attempt.
The US 11th Circuit Court of Appeals on Wednesday night also declined to halt the execution, saying Smith, 58, had not sufficiently supported claims the execution method would violate the constitutional ban on cruel and unusual punishment.
His attorneys are expected to appeal that decision to the US Supreme Court.
According to the Death Penalty Information Centre, Smith would probably not be sentenced to death today. In 1996, a jury recommended a life sentence by a vote of 11 to 1, but the judge overruled that and sentenced him to death. Judicial overrides in Alabama were abolished in 2017.
Smith’s lawyers have waged a legal battle to halt the execution, arguing that the state is seeking to make him the “test case” for an execution method that merits more legal scrutiny before it is used.
“It’s an experiment,” said the Rev. Jeff Hood, Smith’s spiritual advisor and a death penalty opponent.
Mr Bonowitz added that “as a Jew, I would say that just the idea of using gas for executions is an affront to our community”.
“The Nazi legacy of experimentation to find the most expeditious way to rid our community of undesirable prisoners is an undercurrent for anyone who is aware of that history,” he said. “It is a history that should not be repeated in Alabama, or anywhere.”
Would the execution work?
The method is asphyxiation using an inert gas: Alabama Department of Corrections executioners will strap a commercially made industrial-safety respirator mask attached to a canister of pressurised pure nitrogen to the prisoner’s face to rob him of oxygen.
The moment has implications for states that use capital punishment and for abolitionists who seek to end the practice, as well as companies that manufacture masks, nitrogen canisters and other equipment required for the method.
The state has predicted the nitrogen gas will cause unconsciousness within seconds and death within minutes.
A state attorney told the 11th Circuit that it will be “the most painless and humane method of execution known to man”.
But some doctors and organisations have raised alarm about the state’s plan.
“Alabama’s decision to use nitrogen gas to execute Mr. Smith is risky and ill-advised,” Robin M. Maher, executive director of the Death Penalty Information Center (DPIC), said in a statement shared with i.
“The state has already botched several executions, including an earlier attempt to execute Mr Smith in 2022.
“No US state is constitutionally permitted to cause a prisoner to suffer a torturous and painful death, but the inherent risks of this untested method make that a very real possibility.”
Smith and an accomplice were in 1988 hired by Ms Sennett’s husband, Charles Sennett, a Christian minister who had taken out a large insurance policy on his wife, according to prosecutors. She was stabbed repeatedly and beaten with a blunt object.
Mr Sennett later committed suicide. Smith’s accomplice was convicted and sentenced to death, with the execution carried out in 2010.
Why nitrogen gas?
The drugs used in lethal injections, the most common execution method in the US, are increasingly difficult to access.
According to the DPIC, several pharmaceutical companies have restricted the sale of their drugs to state corrections departments. The Intercept in September last year reported that four medical supply manufacturers were refusing to sell their equipment for use in lethal injection executions.
“Once manufacturers and companies find out that their product is being used to kill people, rather than to heal people, they’re concerned, and they don’t want their brand identified with that process,” Dale Baich, a former federal defender who has represented death row prisoners, told The Intercept.
“This may be the next step in challenging methods of execution.”
Three states – Alabama, Mississippi and Oklahoma – have authorised nitrogen hypoxia as an execution method, but no state has attempted to use the untested method until now.
“If this execution is successful, then we’re going to see nitrogen hypoxia take off across the country,” said Rev Jeff Hood.
“If it’s not successful, Kenny will be put in horrific pain and I will be at risk.
“It will stop the march of nitrogen hypoxia to other jurisdictions, which puts us in a very weird Catch-22 conundrum.”
Death penalty in Alabama
Smith’s botched execution was the third consecutive instance in which Alabama officials encountered problems or delays inserting intravenous lines for a scheduled lethal injection, with another execution also called off, according to court filings.
The problems prompted Alabama’s Republican governor Kay Ivey to announce a review of the state’s execution procedures. Officials completed the review a few months later, saying they had obtained new equipment and would add to the pool of available medical personnel for executions.
The sentencing comes against a backdrop of an increase in executions in the US over the past two years, according to the DPIC, despite a majority of Americans turning against the death penalty, NPR reported last month.
According to Amnesty International, 112 countries have abolished it, while others have issued a moratorium or do not practise it.
Of those that still do, China, Iran, Saudi Arabia, Egypt and the US had the most reported executions in 2022, Amnesty said.
Source: inews.co.uk, Claire Gilbody-Dickerson, January 25, 2024
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