Professor Bernard E. Harcourt writes in The New York Times:
After botching a series of executions by lethal injection, the State of Alabama is planning to use nitrogen gas to put condemned prisoners to death. The first execution will amount to a human experiment, because neither Alabama nor any other state has ever tried to kill people this way.
Late last month, prison guards distributed the state’s new execution protocol to prisoners in solitary confinement on Alabama’s death row. One hundred and sixty men and five women await execution in Alabama. They would be secured to a gurney, their nose and mouth would be covered by a mask, and nitrogen would be pumped into their lungs until they suffocate.
Alabama is seeking to conduct the first such experiment on Kenneth Eugene Smith, who already survived a botched execution. Last November, Mr. Smith spent hours strapped to a lethal-injection gurney as the execution team needled around in several locations to insert two intravenous lines without success, before calling off the execution. It is hard to imagine a more ghastly ordeal than being marched back a second time to face the executioner and a new method of execution that has the possibility of unknown agony after decades in prison awaiting death.
Mr. Smith was convicted of the 1988 murder of Elizabeth Dorlene Sennett, with the jury concluding that Ms. Sennett’s husband, a pastor, had paid Mr. Smith to kill her. Jurors voted 11 to 1 to sentence him to life in prison with no opportunity for parole. But a judge overruled the jury and ordered that Mr. Smith be executed. Alabama prohibited judges from overriding juries in future capital cases in 2017; it is no longer allowed anywhere in the United States.
What happens next to Mr. Smith will be up to the courts.
Death by nitrogen hypoxia — by breathing high concentrations of nitrogen, starving a person of oxygen until death — occurs from time to time accidentally. Federal workplace regulations address the risks of nitrogen toxicity on the job. Pilots undergo training involving the loss of oxygen at high altitudes to familiarize themselves with anticipatory sensations. But there are no known uses of nitrogen hypoxia as a method of execution that I am aware of, based on my research, so we have no firsthand experience to assess the likelihood of agony and suffering under the typically dire conditions of execution chambers.
Executions are conducted not in pristine hospital settings but in a pressure cooker of last-minute, exhausted, careless judgments in a prison chamber. The typical executioner is not a medical doctor but someone who is moonlighting. There are colossal psychological and emotional pressures on prison staff members during executions, which are most often conducted in the middle of the night and result in poor conditions for everyone involved, including the lawyers.
Proponents of the nitrogen hypoxia method, also approved by Mississippi and Oklahoma but not yet used in those states, argue that nitrogen gas will quickly render the subject unconscious, with death ensuing within minutes. But there are a lot of things that could go wrong. Should the mask not fit properly and oxygen seep in, the person may be left gasping in agony for air and suffer suffocation. This could result in severe brain damage rather than death. If the outflow is not properly regulated, the person will be asphyxiated by carbon dioxide. There may also be a danger of nitrogen toxicity to the people in the prison workplace or present for the executions.
We do not even reserve this fate for dogs or cats. Nitrogen gas asphyxiation was previously used to euthanize pets. However, the American Veterinary Medical Association no longer recommends nitrogen asphyxiation for nonavian animals, citing data that indicates those animals may experience panic, pain and severe physical distress before dying. The group states in its 2020 guidelines that nitrogen gas “is unacceptable” for animals other than chickens and turkeys.
What past executions amply demonstrate is that the State of Alabama is not competent at performing the task. It is one thing to “botch” an execution, which is commonly understood to mean that an execution caused unnecessary agony or showed gross incompetence by the execution team. Alabama has botched four of the nation’s nine known botched executions since 2018. It is another thing for a state to preside over both a botched and failed execution, in which the condemned person actually survives. Three of the six known failed executions since 1946, according to my research, have taken place in Alabama, and all of those have occurred since 2018.
In February of that year, Alabama executioners spent nearly three hours jabbing my client Doyle Lee Hamm’s groin, ankles and shin bone before they released him from the gurney and he stumbled off in excruciating pain. At the time, he was suffering from terminal cancer and his veins were compromised. Needling his groin during several failed attempts to reach the femoral vein, they apparently hit his bladder. A large amount of blood soaked the gurney near his groin. He survived but ended up dying of cancer in prison.
The Alabama execution team then effectively tortured Alan Eugene Miller in September 2022. The state later agreed not to use lethal injection to execute him and he, too, now awaits death by nitrogen hypoxia. And evidence suggests an execution in July 2022 was also botched, though the prisoner, Joe Nathan James, died on the gurney.
After each of these horrors, state officials managed to convince the next judge that the next time they would know what they were doing. Then there was the botched and failed attempt to execute Mr. Smith two months later.
After that last disaster, Alabama’s governor, Kaye Ivey, imposed a moratorium on executions to investigate these repeated failures. But instead of appointing an independent review commission, as other governors have done, Governor Ivey assigned the task to the state’s Department of Corrections, the very agency responsible for the botched and failed executions. Corrections officials swiftly concluded that they were fully prepared to restart executions, now using nitrogen gas to kill condemned prisoners.
Alabama seems unable to stop tinkering, ever more ghoulish, with the “machinery of death,” as Justice Harry Blackmun called capital punishment.
Lawyers for Mr. Smith are likely to object to this human experiment on the basis that it violates the Eighth Amendment’s proscription against “cruel and unusual punishments.” It is true that Mr. Smith’s lawyers appealed to the court for this method of execution. But that was only because of the twisted logic of the U.S. Supreme Court’s death penalty jurisprudence, under which condemned prisoners must plead for their preferred alternative method of putting someone to death — and which Mr. Smith’s lawyers did after the nightmare of his failed lethal injection execution. He invoked nitrogen, the alternative available under Alabama statutes, a method the state enacted in March 2018 after the Hamm execution fiasco. But under the Supreme Court’s guidelines, the alternative must be not only “feasible” and “readily implemented,” but also one that “significantly reduces a substantial risk” of suffering.
Under the Eighth Amendment, execution by nitrogen is surely unusual because it has never been used as a method of execution in this country or elsewhere, as far as we know. It is also likely to cause needless agony and suffering in the execution chamber. Plus, the threat of a second attempt at execution under circumstances of human experimentation is unconscionably cruel.
The recent track record in the federal courts is not comforting, though. The conservative supermajority at the Supreme Court, especially, has recently been lifting stays of execution imposed by the lower federal courts at a frightening pace, in unsigned opinions, without explanation. Their inexplicable behavior in death penalty cases has given rise to an alarming shadow docket. Some of the justices have become, if anything, the nation’s executioners.
Of course, that does not mean we can throw up our hands. Moments like these present an opportunity for the justices to step up and lead the country to a higher plane — to what the court, in its Eighth Amendment rulings, has so often called “the evolving standards of decency that mark the progress of a maturing society.” It is often at junctures like these that righteous magistrates come forward to resist inhumanity — like the Portuguese consul general in Bordeaux, France, Aristides de Sousa Mendes, who defied expectations and issued visas for refugees fleeing the country in June 1940, saving thousands of lives.
Let us hope that the justices exercise their license to practice in the ways exemplified by Sousa Mendes. Let us hope they demonstrate cleareyed analysis and prevent this human experimentation. In the meantime, it will fall on the rest of us to show the world that this is not what we stand for.
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