Alabama Seeks to Execute Prisoner Using Pure Nitrogen, Potentially Setting Off Legal Battles
August 25, 2023, 6:52 PM ET – Alabama is seeking to become the first state to execute a prisoner by making him breathe pure nitrogen. The Alabama attorney general’s office has asked the state Supreme Court to set an execution date for death row inmate Kenneth Eugene Smith, 58. The court filing indicates that Alabama plans to put him to death by nitrogen hypoxia, a method that has been authorized in three states but has never been used.
Nitrogen hypoxia involves forcing the inmate to breathe only nitrogen, depriving them of oxygen and causing them to die. Nitrogen makes up 78% of the air inhaled by humans and is harmless when inhaled with oxygen. Proponents of the new method argue that it would be painless, but opponents have compared it to human experimentation.
Alabama authorized nitrogen hypoxia in 2018 due to a shortage of drugs used in lethal injections. However, the state has not attempted to use this method until now. Oklahoma and Mississippi have also authorized nitrogen hypoxia but have not utilized it.
The revelation that Alabama is ready to employ nitrogen hypoxia is expected to trigger a fresh round of legal battles regarding the constitutionality of the method. The Equal Justice Initiative, a legal advocacy group that focuses on death penalty issues, expressed concerns over Alabama’s history of “failed and flawed executions and execution attempts.” They argue that experimenting with an unproven method is a terrible idea.
Angie Setzer, a senior attorney with the Equal Justice Initiative, stated, “No state in the country has executed a person using nitrogen hypoxia, and Alabama is in no position to experiment with a completely unproven and unused method for executing someone.”
Alabama previously attempted to execute Kenneth Eugene Smith by lethal injection last year but called off the execution due to difficulties inserting an IV into his veins. The state has faced similar challenges in the past. Governor Kay Ivey ordered a pause on executions following Smith’s aborted execution to review lethal injection procedures. However, the state resumed lethal injections last month.
Smith was convicted for his involvement in the 1988 murder-for-hire slaying of a preacher’s wife. Attorney General Steve Marshall argues that it is time to carry out the death sentence. “It is a travesty that Kenneth Smith has been able to avoid his death sentence for nearly 35 years after being convicted of the heinous murder-for-hire slaying of an innocent woman, Elizabeth Sennett,” Marshall said in a statement.
Alabama has been working on developing the nitrogen hypoxia execution method for several years but has provided limited information about its plans. The attorney general’s court filing did not provide specific details on how the execution would be carried out. However, Corrections Commissioner John Hamm mentioned last month that a protocol was nearly complete.
Several Alabama inmates who are seeking to block their executions by lethal injection, including Smith, have argued for the option of dying by nitrogen hypoxia. Smith’s attorney, Robert Grass, declined to comment on the matter.
The 1988 murder-for-hire slaying of Elizabeth Sennett, a preacher’s wife, had a significant impact on the small north Alabama community where she resided. Prosecutors claimed that Smith was one of two men paid $1,000 to carry out the killing at her husband’s request. The husband, Charles Sennett, who was also convicted in the crime, committed suicide when he became a suspect during the investigation.
As Alabama proceeds with its plans for nitrogen hypoxia as an alternative execution method, legal and ethical concerns are expected to persist. It remains to be seen whether the state Supreme Court will grant the execution date and how the proceedings will unfold.