Alabama carried out America’s first nitrogen execution

Alabama carried out America’s first execution using nitrogen Thursday night, killing a convicted murderer whose jury had voted to spare his life and setting a new bar in how states execute death row inmates.

The convicted inmate, Kenneth Smith, 58, was pronounced dead at 8:25 p.m. Central Time, according to Alabama Gov. Kay Ivey. The Supreme Court allowed the execution to go ahead over objections from three liberal justices and concerns from death penalty opponents who said the untested method could cause Mr. Smith to suffer.

Mr Smith was one of three men convicted of murdering a woman in 1988 whose husband, a pastor, recruited them to kill her.

The protocol released by prison officials called for Mr. Smith is strapped to a gurney in the state execution chamber in Atmore, Ala., and nitrogen is pumped into a mask over his head, depriving him of oxygen.

Mr Smith’s lawyers said they believed it was the world’s first nitrogen execution. It was the second time Alabama had tried to execute Mr. Smith, following a botched lethal injection in November 2022 in which executioners could not find a suitable vein before his death sentence expired.

The Supreme Court’s order allowing the execution to continue did not provide an explanation, as is often the case when judges rule on emergency motions. Three liberal members of the court disagreed with the majority’s decision.

In a sharp dissent, Justice Sonia Sotomayor expressed concern about Alabama’s new method. “Having failed to kill Smith on the first try, Alabama chose him as its ‘guinea pig’ to test a method of execution that had never been attempted before,” she wrote. “The world is watching.”

Justice Elena Kagan, in a separate dissent joined by Justice Ketanji Brown Jackson, wrote that she would stay the execution to give the court time to examine the “extraordinary circumstances” surrounding Alabama’s new execution method and Mr. Smith’s challenges.

“The state’s protocol was only recently developed, and even now, is being revised to prevent Smith from choking on his own vomit,” Justice Kagan wrote.

Nitrous hypoxia, as the method is known, has been used in some assisted suicides in Europe and elsewhere, although the precise method Alabama used differs from common practice. State attorneys argue that death from nitrogen hypoxia, as it is known, is painless, with unconsciousness occurring within seconds, followed by cardiac arrest. They also note that Mr. Smith and his attorneys themselves identified this method as superior to the state’s problematic practice of lethal injection.

Mr. Smith’s lawyers argued that Alabama was not adequately prepared for executions, that a mask — rather than a bag or other enclosure — could theoretically allow enough oxygen to prolong the process and cause Mr. Smith to suffer. Smith, and that Mr. Smith, who has experienced frequent nausea of ​​late, could suffocate under the mask if he vomited.

Governor Ivey said in a statement that she had decided not to use her pardon power to spare Mr. Smith.

“The execution was lawfully carried out by nitrogen hypoxia, a method previously requested by Mr Smith as an alternative to lethal injection,” Ms Ivey said. “Finally Mr. Smith got what he asked for and this case can finally be put to rest.”

U their last petition in order to force the Supreme Court to intervene, the lawyers of Mr. Smith argued that Alabama’s execution plan, including what they describe as a “one-size-fits-all mask,” would create a significant risk that he would “be left in a persistent vegetative state, suffer a stroke, or suffocate on his own vomit.”

Nitrogen makes up about 78 percent of Earth’s air and is normally harmless; oxygen, which makes up about 21 percent, is necessary for human life. But when nitrogen is pumped into a housing or mask, it can quickly displace oxygen and lead to rapid unconsciousness and death.

dr. Philip Nitschke, an assisted-suicide pioneer who estimated he has witnessed about 50 nitrogen deaths, said the use of the mask in Alabama could lead to problems if there was a leak that would let in too much oxygen. He said he could imagine a range of potential scenarios, from a quick death to one involving significant distress and pain.

The Supreme Court already on Wednesday refused to intervene in the lawyers’ appeal of a separate case, in which they claimed that the attempted execution of Mr. Smith for the second time constitutes unconstitutional cruel and unusual punishment, in part because of the agonizing failure of the sentence. The execution attempt was in 2022.

Mr. Smith’s case is unique in part because the jury that convicted him of murder also voted 11 to 1 to sentence him to life in prison, rather than death, but the judge overturned their decision. Alabama has since made it illegal for judges to overturn juries that recommended life in prison — a ban that now exists in every state — but the new law did not apply to previous cases.

Kenneth Smith.Credit…Alabama Department of Corrections

Mr. Smith’s spiritual advisor, the Reverend Jeff Hood, was in the room during the execution. He said earlier on Thursday that Mr Smith had spent the morning meeting with family members, one of his lawyers and Mr Hood. Mr Smith and his mother had their heads covered for much of the visit, he said, and there were “a lot of tears”.

He also said that Mr. Smith ate his last meal Thursday morning: a T-bone steak, hash browns and eggs, all from Waffle House and topped with steak sauce.

Prison officials said that in an effort to reduce the likelihood that Mr. Smith to vomit during the execution, will not be allowed to eat after 10 am

The execution took place in rural south Alabama, about an hour’s drive northeast of Mobile, near the Florida border. Officers blocked off the road to William C. Holman Prison, where the execution took place, and it was surrounded by trees, out of sight from a nearby highway.

A few anti-death penalty protesters gathered for a time in a designated protest zone nearby, but the dirt road was quickly riddled with muddy puddles after heavy rain.

Before Thursday’s execution, a White House spokeswoman declined to comment.

“This is a statewide case and I’m not going to talk about the details of this particular case,” spokeswoman Olivia Dalton said, adding that President Biden has broad concerns about how the death penalty “is administered and whether or not it is consistent with our values ​​of fairness and justice.”

Mr. Biden campaigned to end the federal death penalty after it was resurrected by former President Donald J. Trump. Under Mr. Biden, the Justice Department imposed a moratorium on federal executions, but the department also said this month it would seek the death penalty against a white gunman who fatally shot 10 black men in a racist attack at a Buffalo grocery store.

Thursday’s execution raised the possibility that the method will be examined by other states facing increasing problems in obtaining lethal injection drugs from pharmaceutical companies due to pressure from medical groups, activists and lawyers. Mississippi and Oklahoma have authorized their prisons to carry out executions by hypoxia of nitrogen if they cannot use lethal injection, although they have never attempted to do so.

Alabama’s first attempt at the method comes after several botched or botched executions in which executioners struggled to find veins on the people they were trying to kill.

In 2022, the executioners spent hours trying to access the veins Joe Nathan James, ended up cutting himself into one of his hands in what is known as a “cut” to administer the fatal drugs, according to a private autopsy. As of 2018, three inmates on the state’s death row, including Mr. Smith, have survived execution attempts because of difficulties inserting intravenous lines.

Four days after failing to execute Mr. Smith in 2022, the state’s governor, Kay Ivey, a Republican, halted all executions in the state and asked the prison system, the Alabama Department of Corrections, to review its procedures. The state resumed executions in 2023, killing two men by lethal injection.

In addition to Mr. Smith’s spiritual adviser, scheduled witnesses to the execution included members of Mr. Smith’s family and lawyers, prison officials and five Alabama journalists. Some family members of the woman who was stabbed to death in 1988, Elizabeth Sennett, have also indicated they plan to attend. Two of her sons have publicly stated that they support the execution and think it is long overdue.

Ms. Sennett was stabbed 10 times in the attack by Mr. Smith and another man, according to court documents. Her husband, Charles Sennett Sr., recruited a man to take care of her murder, who in turn recruited Mr. Smith and a third man. Mr. Sennett staged the killing in part to collect on an insurance policy he had taken out for his wife, according to court records. He promised people $1,000 each for a murder.

Mr. Sennett later killed himself; one of the other men involved in the murder was executed by lethal injection in 2010, and the third was sentenced to life in prison and died in 2020.

Katie Rogers contributed to the reporting.

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