The Supreme Court on Wednesday refused to stop Alabama from executing an inmate by nitrogen hypoxia, a controversial and untested method that has prompted legal pushback and a rebuke from the United Nations. Kenneth Eugene Smith is scheduled to be the first person in the United States to be put to death with nitrogen gas.
The justices rejected arguments by Smith’s lawyers that it would be unconstitutional for the state to attempt a second execution after a failed lethal injection in 2022.
Smith also has asked the 11th U.S. Circuit Court of Appeals to block the execution. That court has not yet issued its ruling.
The use of nitrogen gas will be a capital punishment first, even though it has not only been denounced by some medical professionals but also by veterinarians who oppose its use on animals. In 2020, the American Veterinary Medical Association advised against the use of nitrogen gas as a way to euthanize most mammals, calling it “distressing.” One of the few uses of nitrogen gas in animal euthanasia is with chickens.
Experts have repeatedly warned that nitrogen toxicity may cause the condemned person to suffer unnecessarily, while at the same time threatening the health of others in the room.
What is nitrogen hypoxia?
Nitrogen hypoxia is a process where pure nitrogen gas —or nitrogen gas at concentrations high enough to be lethal— is inhaled to the point of causing asphyxiation. It is a new alternative to more common forms of capital punishment, like lethal injection and electrocution, which are the two methods used most prevalently across the U.S., according to the Death Penalty Information Center.
The nonprofit organization noted that “lethal gas” is authorized broadly as an execution method in seven states, including Alabama, Mississippi and Oklahoma, although only those three have specified the use of nitrogen for this purpose, and only Alabama has released a formal execution protocol for nitrogen hypoxia. The protocol was issued last August, and the version made available to the public is heavily redacted.
Breathing nitrogen through a mask could in theory cause a person to lose consciousness before oxygen deprivation leads to death, and Alabama officials have insisted that this is most likely how the scheduled execution will happen.
But Smith’s legal team, while seeking an injunction to halt the execution plans that was ultimately rejected, accused the state of using him as a “test subject” for a lethal experiment. The United Nations’ human rights office called on Alabama to stop the execution, noting there is “no scientific evidence to prove” that execution by nitrogen inhalation will not cause “grave suffering.”
Alyssa Spady contributed to this report.
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