Asia Ashley

aashley@cnhinews.com

Patrick Camp

pcamp@cullmantimes.com

MONTGOMERY — All eyes are on Alabama as Department of Corrections officials are preparing to do what’s never been done before in the United States.

In an Aug. 25, filing in the Alabama Supreme Court, Attorney General Steve Marshall said the state is prepared to carry out Kenneth Eugene Smith’s execution by means of nitrogen hypoxia, a method that would be used for the first time in country’s history for criminal punishment.

Smith — who was sentenced to death by a judge in 1996 after being convicted of killing a woman in a murder-for-hire scheme in 1988 — was set to be executed Nov. 17, 2022, but after ADOC staff spent an hour trying to set IV lines for the lethal injection drugs, his execution was halted.

After his failed execution and a series of botched lethal injection executions on Alabama death row inmates last year, Smith’s attorneys requested that he be executed by nitrogen hypoxia instead.

The last used method of gas execution in the U.S. was in 1999, when cyanide poison was inhaled by a death row inmate in Arizona.

What is nitrogen hypoxia?

Using the nitrogen execution method, the subject would be forced to breathe only nitrogen, depriving them of oxygen and causing them to suffocate to death.

In a research paper published by the Social Science Research Network during the Summer of 2019, attorney Kevin M. Morrow blames the lack of scientific research on what he describes as “near total embargo” by medical professionals willing to participate in death penalty studies.

Morrow also suggests the method would be considered a legal method of execution because pure nitrogen is considered to an inert gas — which makes up roughly 78% of the air we breath — and the fact the U.S. Supreme Court has never entertained challenges to poisonous gases such as potassium cyanide, Morrow states his belief the method presents a more humane alternative.

“Breathing nitrogen is no more painful than breathing helium from a party balloon, although without the squeaky voice,” Morrow said in the paper.

Death by nitrogen hypoxia occurs due because of the displacement of oxygen in arterial blood. Autopsy reports of inert gas hypoxia typically show general signs more commonly associated with suffocation.

A 2003 safety bulletin issued by the U.S. Chemical Safety and Hazard Investigation Board — referenced in Morrow’s paper — lists nausea, vomiting, paralysis and convulsions as potential effects after oxygen levels fall below 12.5%.

According to a redacted copy of the ADOC’s execution policy obtained by CNHI News, the subject being executed via nitrogen hypoxia would be placed on a gurney and be wearing a mask assembly connected to breathing gas tube.

After nitrogen gas is introduced into the mask it will be administered for 15 minutes, or five minutes following a flatline indication on the EKG, whichever is longer, per the ADOC policy.

While advocates for the method cite references of scuba divers and workers who have unwittingly entered nitrogen rich environments as sources, there is little evidence to suggest an estimated time before death to a person will occur.

Morrow mentions two case studies on nitrogen gas as a potential euthanasia method for dogs in his paper.

The first, published in 1978 showed all 34 dogs being pronounced dead after five minutes. However, a later study, published in 1988, which pre-sedated the dogs showed death occurring anywhere between 11 and 51 minutes. Because of this, Morrow advises against the use of any sedatives when executing a prisoner via pure nitrogen inhalation.

“Although it is difficult to predict what may go wrong with a nitrogen execution, it is likely the sedation of prisoners will likewise extend the time necessary until death and discourage the future use of the practice,” he said. “This result would be undesirable for audiences conditioned to the short executions lethal injection usually produces.”

Two other states — Mississippi and Oklahoma— allow nitrogen hypoxia to be used for executions but have not yet used the method. Lethal injection remains the primary legal method of execution for criminal punishment in all states

Previous gas executions described as

‘antagonizing’

Only 11 people have been executed by gas chamber in the U.S. since the death penalty was reinstated in 1976.

Donald Eugene Harding was one of the last inmates to die from a gas execution when he died April 5, 1992, at the Arizona State Prison Complex in Florence.

Harding’s attorney, James Belanger, was a witness to the execution, describing the experience as “the most excruciatingly painful eight minutes” of his life, as it took Harding 10 minutes and 31 seconds to die.

Harding — convicted and executed for two murders he committed in Arizona — was strapped into place on a gurney with thick leather straps and wearing diaper-like undershorts.

When the fumes laced with poisonous cyanide went into the room towards Harding, Belanger recalled that Harding took a quick breath and looked toward him.

“His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight,” Belanger described in a court declaration filed in lieu of live testimony. “Don then took several more quick gulps of the fumes. At this point, Don’s body started convulsing violently and his arms strained against the straps. His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode.”

Belanger also described Harding’s body spasms, convulsions and twitching.

“I couldn’t believe that it was lasting this long. I just wanted it to end,” Belanger’s declaration stated. “Nothing in my life prepared me for the horror of Don being ritualistically and methodically stripped of his humanity, and then watching him being tortured to death.”

Months after Harding’s execution in 1992, Arizona voters replaced the gas chamber with lethal injection as the primary execution method, however, a defendant who was sentenced to death for an offense committed before Nov. 23, 1992, can choose either lethal injection or lethal gas at least 20 days before the execution date.

Walter LaGrand, convicted with his half-brother in a violent attempted robbery turned murder, was the last person executed by gas in the U.S. in 1999 in Arizona.

His brother had chosen lethal injection as his punishment.

According to Murderpedia, LaGrand was pronounced dead 18 minutes after cynanide pellets were dropped into a pan of distilled water and sulfuric acid below the black chair in which he was strapped.

Witness accounts indicated LaGrand coughed violently, and gagged several times before he was pronounced dead after 18 minutes.

Belanger said the fast-acting poison cyanide used in the Arizona executions is purposed to kill. He opined that Alabama’s process of using nitrogen in executions suggests that the subject will slip off into unconsciousness before his or her death.

“It’s never been tested anywhere on any human as far as I know. You just can’t test that,” he said.

The Alabama Department of Corrections declined CNHI’s interview request for more information.

Gov. Kay Ivey has yet to set Smith’s new execution date, and it is unclear whether his execution will proceed.

In recent court filings, Smith’s attorneys are now attempting to avoid a second execution attempt using any method due to the “psychological torture” Smith has endured from the previous botched execution.

The federal district court held that “Smith’s allegations support a plausible claim of cruel superadded pain as part of the [attempted] execution” and “it is plausible rather than merely possible, that a second lethal injection execution poses a substantial risk of severe pain to Smith,” Smith’s attorneys noted in an August response to the state’s motion to dismiss Smith’s petition against another lethal injection attempt.

“This court should reach the same conclusion about Mr. Smith’s related allegations supporting his claim. … that the state should be prohibited from making another attempt to execute him by any method,” Smith’s attorneys stated.