Alabama Supreme Court Authorizes Execution Using Unproven, Never Before Used Method

Updated 11.04.23 Originally published 08.30.23

The Alabama Supreme Court this week granted the attorney general’s motion to set a date to execute Kenneth Smith by nitrogen hypoxia, a method that has never been used.

The November 1 order authorizes the Alabama Department of Corrections to execute Mr. Smith within a time frame set by the governor. Six justices concurred in the order; Chief Justice Tom Parker and Justice Greg Cook dissented, while Justice Kelli Wise recused.

The State’s August 25 request to use an untested and unproven execution method for the first time came less than 10 months after it failed to execute Mr. Smith by lethal injection, making him the second person in less than two months to survive an attempted execution in Alabama.

On November 17, prison officials strapped Mr. Smith to a gurney for over an hour while unnamed state corrections staff poked and prodded him in an effort to access his veins so that toxins could be injected that would kill him. Shortly before midnight, Alabama officials were forced to call off the execution when they could not complete the process.

With its long history of “failed and flawed executions and execution attempts,” EJI senior attorney Angie Setzer told the Associated Press, “Alabama is in no position to experiment with a completely unproven and unused method for executing someone.”

“No state in the country has executed a person using nitrogen hypoxia,” Ms. Setzer said. Allowing Alabama to experiment with a never before used method, she added, “is a terrible idea.”

Alabama has been trying to figure out how to kill someone by forcing them to breathe pure nitrogen gas since lawmakers authorized the method in 2018.

Breathing pure nitrogen causes death by depriving the body of oxygen. There is no scientific evidence on using it to execute people, but nitrogen hypoxia has long been rejected as an acceptable method for euthanizing animals.

Oklahoma and Mississippi authorized execution by nitrogen gas even earlier than Alabama, but neither state has developed a protocol for using the method, which carries the risk of asphyxiating prison employees, family members, and other people in the prison by accidental exposure to the colorless, odorless gas.

The attorney general’s motion did not explain how a nitrogen hypoxia execution would be carried out.

Alabama’s request to experiment on Kenny Smith by using a controversial and untested execution method raises serious constitutional questions and is expected to be challenged in court.