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    November 21, 2023

    Alabama Prepares to Become First State to Carry Out Execution by Nitrogen Gas

    By Minjee Kim, DPRP Intern

    Since its inception in 1982, lethal injection has become the preferred method of execution in most jurisdictions in the United States. But as states encounter an ever-growing list of problems with lethal injection, some are turning to alternative means. Alabama is now seeking to execute a death row prisoner by a method that has never been tried before—nitrogen hypoxia, or death by breathing only nitrogen gas.

    Kenneth Eugene Smith, 58, was initially scheduled for execution by lethal injection in November 2022. After officials attempted—and failed—to set an IV line in Mr. Smith for hours, his execution was called off, marking the third failed lethal injection attempt in Alabama since 2018. Alabama Governor Kay Ivey immediately launched an internal review of the state’s lethal injection procedures, pausing all executions, including Mr. Smith’s, in the interim. Unlike neighboring states like Tennessee that have conducted an independent, third-party investigations into lethal injection procedures, Alabama assigned the review to an internal team in the Department of Corrections. The review concluded in February 2023 with the Department’s self-assessment that it was as “prepared as possible” to carry out executions, and executions resumed.

    Mr. Smith was convicted of murder of Elizabeth Sennett and sentenced to death by a jury in 1989. After successfully overturning his conviction on appeal in 1992, Mr. Smith was convicted again in 1996. The jury voted 11-1 to recommend a life sentence, but the trial judge overrode the recommendation and sentenced Mr. Smith to death. Although Alabama abolished the practice of imposing death sentences by judicial override in 2017, the bill contained a provision prohibiting retroactive application to individuals like Mr. Smith, whose death sentences were imposed prior to 2017. 

    After his failed execution in 2022, Mr. Smith filed a lawsuit, asking the State to execute him by nitrogen hypoxia instead of lethal injection. The U.S. Court of Appeals for the Eleventh Circuit ruled in his favor. Alabama Attorney General Steve Marshall then asked the United States Supreme Court to reverse that decision, but the Supreme Court declined to intervene. In August 2023, the attorney general filed a motion with the Alabama Supreme Court to schedule a date for Mr. Smith’s execution by nitrogen hypoxia, which the court approved in a 6-2 decision. Governor Ivey set the execution to be carried out between January 25 and 26, 2024.

    While nitrogen hypoxia is an approved method of execution in two other states, it has never been implemented. Oklahoma was the first state to approve nitrogen hypoxia as a method for execution in 2015, following the botched lethal injection of Clayton Lockett, but all executions in the state since its approval have been carried out by lethal injection. Alabama’s protocol for execution by nitrogen hypoxia includes the prisoner lying down on a gurney and being fitted with a mask over their face through which the nitrogen gas is administered. The State has not provided Mr. Smith or the public with a copy of the full, unredacted protocol, raising concerns about Mr. Smith serving as a “test subject” for the novel execution method. While nitrogen gas is used to euthanize poultry, the American Veterinary Medical Association described euthanasia by nitrogen hypoxia for most mammals as “unacceptable,” claiming that it can be “distressing for some species.” Trip Pittman, a former Alabama state senator who sponsored the bill to authorize nitrogen hypoxia, pointed to examples of people dying from nitrogen inhalation during industrial accidents to describe the novel method as “very effective” and “a lot more humane [than other methods].” Medical experts, however, draw attention to the fact that “nitrogen hypoxia” is a pseudoscientific term that has no grounds in actual medical practice.

    States that use lethal injection as a method of execution have struggled for many years to obtain the necessary drugs after commercial manufacturers refused to allow their products to be used in executions. Although nitrogen gas is more readily available than lethal injection drugs, whether states will be able to find a consistent supplier for nitrogen hypoxia executions is unclear. In February 2022, a construction company terminated its contract with the state of Alabama to build a gas chamber for capital punishment. In January 2023, Airgas, a major supplier of gas for Alabama, announced in that it would not supply nitrogen gas for executions.

    With two months left until Mr. Smith’s execution date, Attorney General Marshall applauded state prosecutors for “nearly [getting] this case to the finish line”, and Governor Ivey announced that she does not plan on exercising her gubernatorial authority to grant Mr. Smith clemency. 

    The information and views provided in the American Bar Association (“ABA”) Death Penalty Representation Project’s blog do not constitute official statements by the ABA and do not represent official ABA policy. For more information, please visit our policy and statement pages.