ATMORE, Ala. — Alabama is preparing to use nitrogen gas in a planned execution next month; Alabama, the first state to try such a method, is setting the stage for legal challenges as officials across the U.S. examine alternatives amid shortages of lethal injection drugs.
But while Alabama intends to use nitrogen hypoxia, where a person breathes only nitrogen and dies from lack of oxygen, some details of the protocol remain a mystery to the public.
Even near-death inmate Kenneth Eugene Smith told NBC News this month that he was unaware of an unredacted state protocol explaining how the procedure would work. Legal and medical representatives were allowed to tour the execution chamber this month and examine whether a mask breathed nitrogen, but without Smith.
“Like Kenny, so are my other brothers,” Smith said of the state’s 163 other death row inmates during a phone interview from the William C. Holman Correctional Center in Atmore.
Adding to the novelty of his case, Smith, 58, is a rare example of a person who survived a failed execution attempt: An earlier plan to kill him by lethal injection in November 2022 was canceled after prison staff failed to find suitable evidence. suitable vein. This, in addition to increased scrutiny of the use of lethal injection on other inmates, led to a pause in executions in Alabama.
“This is not a one-size-fits-all,” Smith said.
Smith was convicted in 1988 for his role in the hired murder of a preacher’s wife, Elizabeth Sennett, in Colbert County, Alabama. His family said they had confidence in authorities to complete the execution, scheduled for Jan. 25, after decades of legal delays, but stopped short of saying they had confidence in the state to carry out Smith’s sentence after last year’s failed attempt.
“I mean, you can’t really test this on anyone, but hopefully they get it right this time,” said Michael Sennett, Elizabeth Sennett’s son.
Lethal injection remains the primary method of execution in Alabama, but the state, which approved the use of nitrogen in 2018, wants to use it in Smith’s case. When Smith’s execution failed last year, the state agreed not to try to execute him by lethal injection again.
Given the many lingering questions and the state’s questionable history, death penalty experts and critics say the decision to try an untested method does not inspire public confidence.
Oklahoma and Mississippi have also approved the use of nitrogen hypoxia, but neither has tried it.
“It’s ridiculous,” said Deborah Denno, a professor at Fordham Law School who studies the death penalty. “States are so desperate to keep executing people that they find a way to do it and say ‘this is foolproof.'” ‘ and then give very little detail.
What state protocol does and doesn’t say
The public got its first glimpse of how execution by nitrogen hypoxia might work when a protocol prepared by the Alabama Department of Corrections was included in a court filing in August.
The document states that the prisoner will be placed on a stretcher in the execution chamber and given a pulse oximeter that measures the oxygen level in the blood. The mask, which authorities said was “used for industrial purposes,” will be tested to ensure “breathing air is provided” before being fitted to the prisoner’s face.
A spiritual advisor will be allowed to enter the room and interact with the inmate as part of a previously approved plan. (The spiritual advisor will remain in the room until the execution is completed.)
Then the curtains of the room will be drawn so that the execution can be seen by witnesses. According to the document, the prisoner will be allowed to make a final statement, and if a stay of execution is not decided, the mask will be examined for the last time and “the guard will activate the nitrogen hypoxia system.”
Nitrogen gas will be introduced into the mask for 15 minutes or “five minutes following the flat line indication on the ECG, whichever is longer,” the document states.
But the draft of the procedure also includes heavily redacted passages about how oxygen monitoring equipment is calibrated, how the nitrogen hypoxia system is operated, various safety requirements and shutting down the system.
Other details remain unclear, such as who provided the nitrogen gas and masks, how the gas was generally stored, and what safety training prison staff received.
“All the parts we need to know most about have been fixed,” said Denno, the Fordham professor. “Where do they get the gas from? This is really important. Even if you don’t want to mention the manufacturer, you want to know, just like we do with our lethal injection drugs: Does the gas come from a legal source? “Is it delivered to the Penitentiary Institution or is it done somewhere?”
The Alabama attorney general’s office did not immediately respond to a request for comment on further details about the nitrogen gas method. A source familiar with Attorney General Steve Marshall’s thinking told NBC News that he had pushed for the development of the nitrogen protocol during his time in office, saying he was “committed” to carrying out Smith’s execution and calling it “non-negotiable.” “Before his term ends in January 2027.
“This new method may prove to be more efficient for government use and has the superficial benefit of being painless,” the source said, citing difficulties with lethal injection. “Surely that wasn’t the case with Miss Sennett’s death.”
In an earlier statement, Marshall said Smith’s execution was necessary for him to move forward.
“Although the wait was very long, I am grateful that our talented equity litigators nearly brought this case to the finish line,” Marshall said.
How does nitrogen hypoxia kill?
Nitrogen is a naturally occurring odorless and colorless gas; It is abundant in the Earth’s atmosphere and soil and can be used to quickly freeze foods in liquid form.
However, if not mixed with the appropriate amount of oxygen, inhalation can lead to adverse physiological effects such as abnormal fatigue, respiratory failure, vomiting, and even death.
Joel Zivot, a physician who specializes in anesthesiology and critical care medicine at Emory University in Atlanta, said he wants to know how Alabama prison officials plan to administer pure nitrogen without allowing oxygen to interfere with it.
“If nitrogen is mixed with any amount of oxygen, any amount of air, nitrogen will take longer to cause death, or it may not cause death at all,” Zivot said, and if the process is prolonged, “you’ll basically end up with slow asphyxiation, which the body will interpret as extremely uncomfortable and frightening.” We are talking about death through.
“There is no room for error,” he said.
Zivot warned that an unintended nitrogen leak could also have disastrous consequences.
“The thing about lethal injection is that once the catheter is inserted and the drug is injected, there is actually no risk to anyone, no observer or anyone else in the room because the chemicals do not leave the prisoner’s body and he cannot be touched by anyone else,” he said. “But of course the gas will go wherever it wants to go, wherever it can go.”
A U.S. Chemical Safety Board report examining dozens of nitrogen asphyxiation cases between 1992 and 2002 found 80 deaths, with most of the cases occurring in manufacturing and industrial settings. The board said that the causes of death included failure to detect sufficient oxygen deficiency in a closed area and incorrect use of nitrogen gas instead of breathing air.
In 2021, six workers died of nitrogen asphyxiation due to a liquid nitrogen leak at a chicken processing plant in Georgia.
At a hearing this month, Smith’s legal team argued before a federal judge that the use of nitrogen hypoxia would violate the constitutional ban on cruel and unusual punishment. An anesthesiologist who testified on Smith’s behalf said he could vomit with the risk of suffocation, experience a choking sensation, or potentially be left in a vegetative state.
State prosecutors called those possibilities speculative and said they believed humane use of nitrogen was possible.
The American Veterinary Medical Association has confirmed that nitrogen hypoxia should only be used to euthanize certain animals, such as chickens and turkeys, and recommends sedating larger animals. Understanding how the human body responds to nitrogen hypoxia is limited because it is not something medical professionals can legally examine as it relates to executions; It is unclear whether the Alabama protocol recommends the use of sedatives.
A spokesman said the American Medical Association “may not require doctors to violate professional ethics by sharing medical information that could assist or contribute to the ability of others to carry out death penalty methods.”
Can execution be postponed?
U.S. District Judge R. Austin Huffaker Jr. did not say when he might rule on Smith’s case, but in a court decision last week he suggested Alabama make at least one compromise by allowing final rites to be performed before masks are worn.
Smith’s spiritual advisor, the Rev. Jeff Hood, filed a lawsuit this month claiming the state violated Smith’s religious freedoms by requiring him to be no closer than 10 feet from Smith in the execution chamber.
Hood, who opposes the death penalty, said Alabama agreed to allow him to be with Smith before he was unmasked and to allow him to touch Smith during the execution. They still have questions about his safety.
“Who will be there if there is a nitrogen leak in the execution chamber?” Hood asked this question at a press conference after filing his complaint. “What is the emergency procedure if I faint?”
The Alabama Department of Corrections declined to comment on pending litigation.
Prosecutors said Smith was 22 when pastor Charles Sennett hired him and two others to kill his wife for $1,000 so he could collect on her life insurance. Elizabeth Sennett, 45, was stabbed to death in her home.
“If I could turn back time, I definitely would,” Smith said this month. “Too many lives have already been lost in this case, and this will create more victims.”
Sennett’s family disagrees.
“As long as it goes, I don’t care how it gets out,” Michael Sennett said.
Smith said he hopes any delay in his execution will be long enough for the state legislature to pass a bill that would benefit him. A judge sentenced Smith to death in 1996, although the jury voted 11-1 for a life sentence.
A bill that would require a unanimous jury to impose the death penalty and apply retroactively to cases like Smith’s did not advance this year but is expected to be reintroduced when the next session begins in February.
Smith answered questions about the nitrogen hypoxia protocol, but said he only drifted into depression and anxiety when he thought about last year’s botched execution and what awaited him next month.
“It’s truly appalling that they put me first in line with gas,” he said. “Yes, it is surreal to be in this position.”
Abigail Brooks reported from Atmore and Erik Ortiz reported from New York.
This article first appeared on NBCNews.com.