US judge gives go-ahead to execution using novel method

The state of Alabama may now put a convicted murderer to death using nitrogen gas, despite concerns voiced by UN experts

A federal judge in the US has given the green light to that country’s first-ever execution using nitrogen gas, set to be carried out later this month in the state of Alabama. The convict’s lawyers have argued that the state is planning to use their client as a “test subject.”

Kenneth Eugene Smith, now 58, is a convicted murderer who, in 1988 along with another criminal, stabbed to death a preacher’s wife in exchange for $1,000 each. Church of Christ pastor Charles Sennett Sr is believed to have commissioned the hit on his own spouse, in the hope of cashing in on a life-insurance policy. He died by suicide once the murder investigation focused on him as a suspect.

One of the two assassins, John Forrest Parker was put to death in 2010, with Smith’s own execution called off in 2022 after officials failed to connect the two intravenous lines required to administer a lethal injection.

In his ruling on Wednesday, US District Judge R Austin Huffaker refused to grant an injunction to stop Smith’s execution, now scheduled for January 25. During a hearing that preceded the decision, Alabama Attorney General Steve Marshall’s office argued that the novel method of execution would “cause unconsciousness within seconds, and cause death within minutes.” Officials cited industrial accidents which saw people pass out and die after being exposed to high concentrations of nitrogen gas.

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Smith’s defense team parried, pointing out that the new execution protocol is full of unknowns and potential problems that may end up seeing it violate the constitutional ban on cruel and unusual punishment. The attorneys also cited the American Veterinary Medical Association’s 2020 recommendation, that nitrogen hypoxia should not be used as a means of euthanizing mammals, other than pigs, as it could create an “anoxic environment that is distressing for some species.”

Alabama’s executioners plan to place a respirator-type face mask over the convict’s nose and mouth and to then replace breathable air with pure nitrogen.

The gas, which comprises 78% of the air humans breathe, is deadly at higher levels. Two other US states, Mississippi and Oklahoma, have also authorized nitrogen hypoxia as an execution method, but no state has yet attempted to implement it.

Meanwhile, in a statement published last Wednesday, a panel of UN experts expressed concern that “nitrogen hypoxia would result in a painful and humiliating death,” noting that there is no scientific evidence to prove otherwise. The UN experts called on federal and state authorities to halt Smith’s execution pending review of the execution protocol.