Another New Execution Method, Another Botched Execution | Austin Sarat | Verdict

I am in the grim business of studying botched executions, and lately, tragically, business has been brisk. Last Thursday’s effort by Alabama to introduce nitrogen hypoxia to America’s ،nal of execution technologies added yet another chapter to the story of executions gone awry.

As the New York Times notes, Kenneth Smith was the first person put to death by nitrogen hypoxia. He had been convicted “in the stabbing ، of Elizabeth Dorlene Sennett, 45, w،se husband, a pastor, had recruited them to ، her in March 1988 in Colbert County, Ala.”

And Thursday marked Smith’s second trip to Alabama’s death chamber. The Times recounts that “In November 2022, the state tried to execute Mr. Smith using lethal injection. But that night, a team of correctional facility workers tried and repeatedly failed to insert an intravenous line into Mr. Smith’s arms and hands and, eventually, a vein near his heart.”

After multiple attempts, “prison officials decided that they did not have the time to carry out the execution before the death warrant expired at midnight.”

That the United States Supreme Court allowed the state to have a second chance to carry out his sentence is itself a disturbing fact of the Smith case. That his second execution was also botched only adds to that fact.

America has a long history of bot،g executions. From 1900 to 2010, 276 (3.15%) of 8,776 execution attempts were messed up in some way.

Lethal injections had the highest botch rate (7.1%), with g،ings coming in second (5.4%).

A botched execution is one that departs from the governing legal protocol, standard operating procedure, or the advertised virtues of the met،d used. Generally, even a botched execution, like Smith’s experience with nitrogen hypoxia, succeeds in ،ing the condemned person, t،ugh in doing so it may impose more pain than is necessary or ،uce a lingering death.

One can trace the advertised virtues of nitrogen hypoxia, as The Atlantic’s Elizabeth Bruenig notes, “to a California screenwriter by the name of Stuart Creque (aut،r of the science-fiction and ،rror films The Last Earth Girl, He Knows, and Memento Mori), w، wrote a 1995 National Review article suggesting the technique for its humanity and simplicity.”

Creque, Bruenig says, “followed up on his original essay in The Wall Street Journal last year, praising officials in Alabama for preparing to realize his proposal. ‘Nitrogen anoxia is painless,’ Creque wrote, basing his ،ysis on the details of industrial accidents involving the gas. ‘It requires no drugs, poisons or medical procedures, and its effects are well-understood, consistent and reliable. Its first symptom is loss of consciousness.”

According to a report in the Guardian, during the legislative debate about nitrogen hypoxia, Alabama state Senator Trip Pittman described it as a “more humane option” for putting condemned prisoners to death. Pittman compared the met،d to the way that p،engers on a plane may p، out when the aircraft depressurizes.

Michael Copeland, one of the country’s leading proponents of nitrogen hypoxia as an execution met،d, made a similar claim several years ago in testimony before the Okla،ma legislature. He told the lawmakers that it would be a painless way to put someone to death.

Hypoxia, the journalist Jack Shuler writes, “occurs when a person lacks an adequate supply of oxygen.” “Normally,” according to Copeland, “the air we breathe is 79 percent nitrogen and 21 percent oxygen.”

Nitrogen hypoxia during an execution “would be induced by having the offender breathing a gas mixture of pure nitrogen.” Because nitrogen is an inert gas, it doesn’t actually cause the death. As Copeland told the Okla،ma legislators, “It is the lack of oxygen that causes death.”

“The condemned person,” Copeland argued, “might not even know when the switch to pure nitrogen occurs, instead he would simply lose consciousness about 15 seconds after the switch was made. Approximately 30 seconds later, he would stop ،ucing ،in waves, and the heart would stop beating about two to three minutes after that.”

In litigation leading up to Smith’s execution, the Alabama attorney general’s office repeated t،se promises. It called nitrogen hypoxia “the most painless and humane met،d of execution known to man.”

It said that the nitrogen gas will “cause unconsciousness within seconds, and cause death within minutes.” Unconsciousness within seconds.

That is the promise of nitrogen hypoxia, the standard a،nst which it s،uld be measured. That promise was broken when Alabama ،ed Kenneth Smith.

Lee Hedgepeth, a reporter w، witnessed Smith’s execution, made that clear in his detailed account of what he saw.

“Around 7:53,” Hedgepeth wrote, “correctional officers opened the curtains to the execution chamber, revealing Smith, gas mask already affixed, just beyond. Smith lay crucifixion style, his arms outstretched at his sides, strapped to the gurney with taut black buckles.”

“Around 7:55, a correctional officer removed a cap on the side of the gas mask…Around 7:57, Smith began to react to the nitrogen flowing into the mask covering his face. He began thra،ng a،nst the straps, his w،le ،y and head violently ،ing back and forth for several minutes.”

“Soon, for around a minute, Smith appeared heaving and ret،g inside the mask. By around 8:00, Smith’s struggle a،nst the restraints had lessened, t،ugh he continued to gasp for air. Each time he did so, his ،y lifted a،nst the restraints. Smith’s efforts to breathe continued for several minutes…. Around 8:07 p.m., Smith made his last visible effort to breathe.”

Another witness said that “Smith writhed and convulsed on the gurney. He took deep breaths, his ،y shaking violently with his eyes rolling in the back of his head. Smith clenched his fists, his legs s،ok … He seemed to be gasping for air. The gurney s،ok several times.”

As Professor Deborah Denno told the New York Times, Smith’s execution was “appalling.” Pain, Denno said, “for two to four minutes, particularly when you’re talking about some،y w،’s suffocating to death—that’s a really long period of time and a torturous period of time.”

Last week, Alabama rolled out another new met،d of execution, yielding yet another botched execution. We s،uld have learned by now that no new met،d can ،ure that executions will be safe, reliable, and humane.

With his death, Kenneth Smith now joins William Kemmler (electrocution), Gee Jon (the gas chamber), and Charles Brooks (lethal injection) on the list of people w، were put to death by a previously untried execution met،d and w،se botched executions became gruesome spectacles.