Skip to main content

USA | Another New Execution Method, Another Botched Execution

I am in the grim business of studying botched executions, and lately, tragically, business has been brisk. Last Thursday’s effort by Alabama to introduce nitrogen hypoxia to America’s arsenal of execution technologies added yet another chapter to the story of executions gone awry.

As the New York Times notes, Kenneth Smith was the first person put to death by nitrogen hypoxia. He had been convicted “in the stabbing murder of Elizabeth Dorlene Sennett, 45, whose husband, a pastor, had recruited them to kill her in March 1988 in Colbert County, Ala.”

And Thursday marked Smith’s second trip to Alabama’s death chamber. The Times recounts that “In November 2022, the state tried to execute Mr. Smith using lethal injection. But that night, a team of correctional facility workers tried and repeatedly failed to insert an intravenous line into Mr. Smith’s arms and hands and, eventually, a vein near his heart.”

After multiple attempts, “prison officials decided that they did not have the time to carry out the execution before the death warrant expired at midnight.”

That the United States Supreme Court allowed the state to have a second chance to carry out his sentence is itself a disturbing fact of the Smith case. That his second execution was also botched only adds to that fact.

America has a long history of botching executions. From 1900 to 2010, 276 (3.15%) of 8,776 execution attempts were messed up in some way.

Lethal injections had the highest botch rate (7.1%), with gassings coming in second (5.4%).

A botched execution is one that departs from the governing legal protocol, standard operating procedure, or the advertised virtues of the method used. Generally, even a botched execution, like Smith’s experience with nitrogen hypoxia, succeeds in killing the condemned person, though in doing so it may impose more pain than is necessary or produce a lingering death.

One can trace the advertised virtues of nitrogen hypoxia, as The Atlantic’s Elizabeth Bruenig notes, “to a California screenwriter by the name of Stuart Creque (author of the science-fiction and horror films The Last Earth Girl, He Knows, and Memento Mori), who wrote a 1995 National Review article suggesting the technique for its humanity and simplicity.”

Creque, Bruenig says, “followed up on his original essay in The Wall Street Journal last year, praising officials in Alabama for preparing to realize his proposal. ‘Nitrogen anoxia is painless,’ Creque wrote, basing his analysis on the details of industrial accidents involving the gas. ‘It requires no drugs, poisons or medical procedures, and its effects are well-understood, consistent and reliable. Its first symptom is loss of consciousness.”

According to a report in the Guardian, during the legislative debate about nitrogen hypoxia, Alabama state Senator Trip Pittman described it as a “more humane option” for putting condemned prisoners to death. Pittman compared the method to the way that passengers on a plane may pass out when the aircraft depressurizes.

Michael Copeland, one of the country’s leading proponents of nitrogen hypoxia as an execution method, made a similar claim several years ago in testimony before the Oklahoma legislature. He told the lawmakers that it would be a painless way to put someone to death.

Hypoxia, the journalist Jack Shuler writes, “occurs when a person lacks an adequate supply of oxygen.” “Normally,” according to Copeland, “the air we breathe is 79 percent nitrogen and 21 percent oxygen.”

Nitrogen hypoxia during an execution “would be induced by having the offender breathing a gas mixture of pure nitrogen.” Because nitrogen is an inert gas, it doesn’t actually cause the death. As Copeland told the Oklahoma legislators, “It is the lack of oxygen that causes death.”

“The condemned person,” Copeland argued, “might not even know when the switch to pure nitrogen occurs, instead he would simply lose consciousness about 15 seconds after the switch was made. Approximately 30 seconds later, he would stop producing brain waves, and the heart would stop beating about two to three minutes after that.”

In litigation leading up to Smith’s execution, the Alabama attorney general’s office repeated those promises. It called nitrogen hypoxia “the most painless and humane method of execution known to man.”

It said that the nitrogen gas will “cause unconsciousness within seconds, and cause death within minutes.” Unconsciousness within seconds.

That is the promise of nitrogen hypoxia, the standard against which it should be measured. That promise was broken when Alabama killed Kenneth Smith.

Lee Hedgepeth, a reporter who witnessed Smith’s execution, made that clear in his detailed account of what he saw.

“Around 7:53,” Hedgepeth wrote, “correctional officers opened the curtains to the execution chamber, revealing Smith, gas mask already affixed, just beyond. Smith lay crucifixion style, his arms outstretched at his sides, strapped to the gurney with taut black buckles.”

“Around 7:55, a correctional officer removed a cap on the side of the gas mask…Around 7:57, Smith began to react to the nitrogen flowing into the mask covering his face. He began thrashing against the straps, his whole body and head violently jerking back and forth for several minutes.”

“Soon, for around a minute, Smith appeared heaving and retching inside the mask. By around 8:00, Smith’s struggle against the restraints had lessened, though he continued to gasp for air. Each time he did so, his body lifted against the restraints. Smith’s efforts to breathe continued for several minutes…. Around 8:07 p.m., Smith made his last visible effort to breathe.”

Another witness said that “Smith writhed and convulsed on the gurney. He took deep breaths, his body shaking violently with his eyes rolling in the back of his head. Smith clenched his fists, his legs shook … He seemed to be gasping for air. The gurney shook several times.”

As Professor Deborah Denno told the New York Times, Smith’s execution was “appalling.” Pain, Denno said, “for two to four minutes, particularly when you’re talking about somebody who’s suffocating to death—that’s a really long period of time and a torturous period of time.”

Last week, Alabama rolled out another new method of execution, yielding yet another botched execution. We should have learned by now that no new method can assure that executions will be safe, reliable, and humane.

With his death, Kenneth Smith now joins William Kemmler (electrocution), Gee Jon (the gas chamber), and Charles Brooks (lethal injection) on the list of people who were put to death by a previously untried execution method and whose botched executions became gruesome spectacles.

Source: verdict.justia.com, Austin Sarat, January 29, 2024. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Views expressed do not represent Amherst College.

_____________________________________________________________________










SUPPORT DEATH PENALTY NEWS





Most viewed (Last 7 days)

20 Minutes to Death: Witness to the Last Execution in France

The following document is a firsthand account of the final moments of Hamida Djandoubi, a convicted murderer executed by guillotine at Marseille’s Baumettes Prison on September 10, 1977. The record—dated September 9—was written by Monique Mabelly, a judge appointed by the state to witness the proceedings. Djandoubi’s execution would ultimately be the last carried out in France before capital punishment was abolished in 1981. At the time, President Valéry Giscard d'Estaing—who had publicly voiced his "deep aversion to the death penalty" prior to his election—rejected Djandoubi’s appeal for clemency. Choosing to let "justice take its course," the President allowed the execution to proceed, just as he had in two previous cases during his term:   Christian Ranucci , executed on July 28, 1976 and Jérôme Carrein , executed on June 23, 1977. Hamida Djandoubi , a Tunisian national, was sentenced to death for killing his former lover, Elisabeth Bousquet. He was execu...

Texas inmate seeks to stop looming execution after codefendant confesses to double murder

In his appeal, James Broadnax, who wants a new trial, included a signed confession by his cousin saying he committed the 2008 Garland murders. With just 42 days remaining until his scheduled execution by lethal injection on April 30, 2026, in Huntsville, Texas death row inmate James Broadnax, 37, filed a new appeal Thursday with the Texas Court of Criminal Appeals, seeking to stay the date, remand his case for a new trial, and ultimately vacate his death sentence for the 2008 capital murders of music producers Stephen Swan, 26, and Matthew Butler, 28, outside their Zion Gate Records studio in Garland. A fabricated story The appeal centers on a signed written declaration from Broadnax's cousin and codefendant, Demarius Cummings, 37—dated March 11 and obtained by media outlets in which Cummings confesses that he alone planned the June 19, 2008, robbery, obtained the pistol used in the crime, and fired the fatal shots during the botched holdup that netted only $2 in cash and a 1995 Fo...

Georgia | 11th Circuit confirms lethal injection execution for Georgia inmate wanting firing squad

In his complaint, Michael Wade Nance said his veins were so severely compromised that they were likely to blow and cause him to suffer “excruciating pain” during the execution. ATLANTA (CN) — A panel for the 11th Circuit on Thursday upheld a judge’s ruling against a death row inmate who sought an execution by a firing squad instead of lethal injection. The decision paves the way for the state’s long-awaited execution of Michael Wade Nance, who was convicted of murder and sentenced to death over 25 years ago. In a unanimous opinion, the circuit judges agreed with a federal judge’s conclusion that Nance failed to prove lethal injection was likely to cause him an unconstitutional level of pain or discomfort.

Iranian Gay Activist: "They Forced Me to Watch Executions So I Would Know How Mine Would Be"

Iranian LGBT activist now living as a refugee in Spain. He was sentenced to death by the ayatollah regime for being homosexual and for his support campaign for the community. "The enemy was already at home," he says about the current war In 11 countries around the world, homosexuality is punishable by death - it is criminalized in almost 70 countries. One of them is the Islamic Republic of Iran, from where Ramtin Zigorat (Tabriz, 1988) managed to escape after avoiding a death sentence and enduring the worst tortures. He has been living as a refugee in Spain for six and a half years. Question . His life, his testimony, can help us better understand what the Iranian Islamist regime is. I believe that until adolescence, you did not fully understand that you were homosexual.

Once Nevada’s youngest on death row, double murderer paroled as victims’ family claims silence from state

LAS VEGAS — A man who once stood as the youngest person on Nevada’s death row has officially transitioned from a life behind bars to a life under supervision, following his release from High Desert State Prison last month. Edward Michael Domingues, 49, was released on parole on Feb. 13, 2026. His freedom marks the end of 32 consecutive years of incarceration for the 1993 murders of Arjin Chanel Pechpho and her 4-year-old son, Jonathan Smith. Since his release, the case has ignited a renewed debate over Nevada’s victim notification systems. Tawin Eshelman, the mother and grandmother of the victims, confirmed that the family was never formally notified of the parole hearing that led to Domingues' freedom.

Arizona | Death Row Inmate Challenges Execution Warrant, Citing 2025 Cyberattack and Protocol Failures

Leroy Dean McGill was sentenced to death for a 2002 gasoline attack in North Phoenix against a couple, Charles Perez and Nova Banta. PHOENIX — Attorneys for Arizona death row inmate Leroy Dean McGill have formally challenged the state’s attempt to secure an execution warrant, citing a catastrophic 2025 cyberattack and a long history of troubled lethal injection protocols. The challenge comes as Arizona seeks to resume capital punishment following a year-long hiatus. If the Arizona Supreme Court grants the state’s request, McGill would become the first person executed in the state since 2024.

Florida executes Michael King

Killer of stay-at-home mom whose death led to 911 reform is executed Michael King kidnapped Denise Amber Lee from her Florida home in broad daylight in 2008. If it weren't for a botched 911 call, Lee may have survived the ordeal.  Florida has executed a death row inmate for the rape and murder of a stay-at-home mom whose death exposed the vulnerabilities of the 911 system nationwide and led to reform within the industry.  Michael King, 54, was executed by lethal injection on Tuesday, March 17, for the kidnapping, rape and murder of 21-year-old Denise Amber Lee. King abducted the married mother of 2 young sons from her home in broad daylight on Jan. 17, 2008, less than an hour before Lee's husband returned from work. 

Taiwan’s Oldest Death Row Prisoner Denied Retrial by Supreme Court

TAIWAN’S OLDEST DEATH ROW prisoner, Wang Xin-fu, has been denied a retrial by the Supreme Court. This occurs despite the fact that Wang has consistently maintained his innocence and, in fact, did not commit the murders for which he is on death row. In particular, Wang was sentenced to capital punishment in 2006 over the killing of two police officers at a karaoke bar in 1990. The shooting was committed by Chen Rong-jie, who was then 19. Wang was accused of ordering the hit. It is believed that Wang’s confession of guilt was extracted through torture and intimidation.

Alabama | Death row inmate granted clemency shares emotional message on day he was set to die

Alabama governor commuted death sentence of Charles Burton, 75, who didn't kill anyone An Alabama man who was outside a building when a man was killed in an armed robbery is looking at life as "a gift from God" after being granted clemency by the state’s governor just days before he was scheduled to be executed.  Charles "Sonny" Burton, 75, was sentenced to death for his role in the robbery of a Talladega AutoZone store that left a man dead in 1991.  While Burton left the store before Derrick DeBruce gunned down customer Doug Battle, he was tried and convicted as an accomplice, with prosecutors insisting Burton acted as the group’s leader in the armed robbery. 

Texas: Dexter Darnell Johnson to die on August 15; Larry Ray Swearingen on August 21

Dexter Darnell Johnson's execution is scheduled to occur at 6 pm CDT, on Thursday, August 15, 2019, at the Walls Unit of the Huntsville State Penitentiary in Huntsville, Texas.  31-year-old Dexter is convicted of the murder of 23-year-old Maria Aparece and 17-year-old Huy Ngo on June 18, 2006, in Houston, Texas.  Dexter has spent the last 11 years of his life on Texas’ death row. Dexter was born and raised in Texas. He dropped out of school following the 9th grade. During the early morning hours of June 18, 2006, Dexter Johnson and 4 of his friends, Ashley Ervin, Louis Ervin, Keithron Fields, and Timothy Randle, were driving around in Ashley’s car, looking for someone to rob. The group discovered Maria Aparece and Huy Ngo siting in Maria’s vehicle on the street. Johnson took a shot gun and stood outside the driver’s side door, threatening to shoot Maria if she did not cooperate. Johnson demanded she open the door, and when she did, he threw her into the ...