Alabama’s Nitrogen Gas Execution Thursday Will Be Cruel and Unusual Punishment

By Stephen Cooper and Joel Zivot / Jurist

On Jan. 25, the Alabama Department of Corrections (ADOC) plans to execute Kenneth Smith by forcing him to breathe pure nitrogen gas, an untested execution method with profound legal and ethical consequences. Death penalty abolitionists worldwide have railed against this form of capital punishment, but these efforts have thus far failed to alter the state’s course. Federal Judge R. Austin Huffaker Jr. ruled on Jan. 10 that ADOC was free to move forward with its plans.

Although ADOC claims this new method will kill within the boundaries of the law, this claim is, by definition, unsubstantiated, as no state has ever used nitrogen gas for execution. And for reasons we’ll explore in greater detail below, this method will in essence require prisoners to participate in their own executions, weaponizing their lungs against them. It is hard to imagine a much crueler form of punishment.

We believe this court ruled in error. Based on myriad legal, scientific, and logistical concerns outlined below, nitrogen gas executions should be outlawed as cruel and unusual punishment.

A Constitutional Prohibition on Cruel, Unusual Punishment

The Eighth Amendment of the US Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Death penalty proponents have often argued that the cruelty of capital crimes justifies harsh methods. But the Eighth Amendment leaves little room for nuance; it states straightforwardly that punishment cannot be cruel.

In a speech delivered at Georgetown University in 1985, Supreme Court Justice William Brennan said: “The most vile murder does not, in my view, release the State from constitutional restraints on the destruction of human dignity.”

This commitment to constitutional humanism was echoed in 2014 when the US Supreme Court held for the defendant in Hall v. Florida, a case that centered on issues related to the imposition of the death penalty against individuals with intellectual disabilities. In his majority opinion, Justice Anthony Kennedy wrote: “The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.” We would argue that just as dignity pertains to our lofty aspirations, cruelty — the malicious infliction of mental or physical suffering — represents the real-world consequence of a lack of dignity.

If our legal system allows a state to execute a prisoner through untested methods like forced nitrogen gas inhalation, how can the Alabama Department of Corrections (ADOC), acting as an agent of justice, claim to uphold human dignity?

How Nitrogen Gas Transforms Prisoner Into Executioner

While the use of state-sanctioned nitrogen gas execution is untested, a basic understanding of human physiology paints a grim picture.

In short: Any convict subjected to this form of capital punishment will have no choice but to actively assist in bringing about their own demise.

It is hard to imagine such a fate qualifying as anything other than cruel and unusual punishment. To comprehend the flaws in ADOC’s assertion that nitrogen gas execution will be legally sound, it’s essential to delve into the chemistry of nitrogen, the anticipated physiological reactions to nitrogen inhalation, and how the medical and scientific communities typically assess novel applications of chemical effects on the body. ADOC’s heavily redacted nitrogen gas protocol is deficient in several aspects, perhaps most alarmingly insofar as it conceals certain details of the plan under a cloak of secrecy. In his recent decision, Judge Huffaker acknowledged that the state maintains a practice of secrecy, making any impartial and serious evaluation impossible. Executions conducted in secrecy run counter to the principles of justice, and as a civil society, we rightfully condemn such practices.

Nitrogen, denoted by the symbol N with an atomic number of 7, is a pervasive chemical element classified as a nonmetal. At room temperature, nitrogen exists as a colorless, odorless gas, constituting 78% of the air by volume. The remaining air comprises 21% oxygen and trace amounts of other gases like carbon dioxide, hydrogen, and neon. Generated through the distillation of liquid air, nitrogen plays a crucial role in various biological and chemical processes. It was first isolated in the 1760s by Henry Cavendish and Joseph Priestley, who removed oxygen from air. Daniel Rutherford formally recognized it as nitrogen in 1772. Interestingly, Cavendish and Priestley observed that a burning candle or a mouse exposed to a pure deoxygenated environment would be extinguished or die, respectively. After its discovery, Antoine Lavoisier suggested calling the gas “azote,” derived from the ancient Greek word meaning “no life.”

Normal breathing involves the exchange of inhaled oxygen with exhaled carbon dioxide, a metabolic consequence of cellular respiration. Breathing low oxygen levels can be distressing, and the human body may be temporarily deceived when oxygen levels are gradually reduced. Chemoreceptors lining certain blood vessels detect changes, signaling a fall in oxygen and a rise in carbon dioxide. Holding one’s breath leads to a rapid increase in blood carbon dioxide levels, causing an overwhelming urge to breathe. Individuals can typically hold their breath for 30 seconds to 2 minutes, and hyperventilating before breath-holding can extend this duration. In nitrogen gas execution, prisoners must cooperate by maintaining natural breathing. Unlike lethal injection, where a functioning heart is sufficient, nitrogen gas execution necessitates breathing in the gas, and attempts to hold breath will result in discomfort and an eventual involuntary breath.

In contrast to lethal injection, nitrogen gas execution requires the active participation of the prisoner, like Smith, to continue natural breathing. In lethal injection, once an intravenous line is established, a functioning heart is all that’s required for the distribution of injected chemicals. People lack the practical ability to stop their hearts and delay lethal injection. However, with nitrogen gas execution, the prisoner must inhale the gas voluntarily. While a prisoner may initially attempt to hold their breath to delay exposure, this will inevitably lead to great discomfort and ultimately, the involuntary resumption of breathing. This dynamic could be a common starting point for every nitrogen gas execution.

ADOC-Specific Logistical Concerns

In November 2022, Smith endured four hours strapped to an execution gurney as members of the ADOC execution team attempted, unsuccessfully, to establish the two intravenous lines required for the state’s lethal injection procedure. In the aftermath of this failure, Alabama halted executions for several months, before reviving them based on confidential findings that concluded execution timeframes should be extended from 24 to 30 hours. Given the secrecy shrouding this determination, it is difficult to take comfort in the state’s findings.

But in addition to the cruelty concerns raised above, past error raises concerns about the health and safety of others present during the execution, as well as of the condemned himself should he survive another execution attempt.

The 1976 Supreme Court ruling in Estelle v. Gamble established that prisoners have a constitutional right to healthcare. Though the contours of this right are murky in the context of execution, it’s clear that if an execution fails, the prisoner becomes a patient and has the right to be treated and resuscitated.

In the case of a failed nitrogen gas execution, the prisoner would become a patient in an environment saturated with nitrogen gas, potentially incapacitating any first responder entering the execution room.

Additionally, the prisoner will wear a mask that must be removed to administer oxygen. Due to execution room ergonomics, a resuscitator may face obstacles in reaching the head of the gurney, a critical step in airway management. All of these seemingly small obstacles become gargantuan under the stress and pain of a failed execution attempt.

Subsequently, initiating intravenous therapy becomes essential. Notably, based on past experiences with Kenneth Smith, ADOC personnel struggled for over three hours to start an IV. The difficulty of establishing lifesaving intravenous therapy remains uncertain, but it would undoubtedly demand exceptional skill and speed. First responders would likely require specialized suits with individual air supplies to enter the execution room safely.

For any of these consequences not to be dire, oversight by someone knowledgeable, authoritative, and prepared to call off the execution and promptly order resuscitation would be imperative.

ADOC’s track record of failed executions raises doubts about the viability of all of this.

Additional Worries About Masks

And these aren’t the only potential logistical challenges. As mentioned earlier, the delivery of nitrogen requires a tightly fitted mask. A poor mask fit poses a significant risk, as any break in the seal would allow air to enter, interrupting and prolonging the execution attempt. Lack of cooperation, especially among individuals prone to claustrophobia, can heighten the risk of an ill-fitting mask, as the application process itself can be terrifying, inducing sensations of suffocation.

In the context of normal breathing cycles, the ADOC mask system must address the removal of exhaled carbon dioxide, which accumulates within the exhaled gas. Failure to expel this carbon dioxide, leading to its rebreathing, would result in extreme discomfort and noxious experiences, potentially causing intense agitation. If carbon dioxide exits the mask through a one-way valve, nitrogen gas will also escape, swiftly creating a low oxygen/high nitrogen environment in the execution room. Individuals in the room, now breathing nitrogen-rich gas, face potential harm, including death. Safety measures would necessitate everyone else in the execution room to breathe air from a tank, not the ambient gas. Wearing a mask, including an N95 mask commonly used during the COVID pandemic, would offer no protection against nitrogen gas exposure.

Assuming the unlikely scenario where a mask fits perfectly and the prisoner cooperates with breathing, what can be expected? In a veterinary euthanasia study comparing death from pentobarbital injection to nitrogen gas inhalation, most animals exposed to nitrogen gas developed early convulsions. In a prior physiology experiment exploring human adaptations to hypoxia, healthy volunteers breathing pure nitrogen often experienced seizures within 17-20 seconds. Seizures involve violent shaking, potential urination, and the risk of aspirating gastric contents into the lungs, causing chemical lung burns. During a seizure, a person may stop breathing, delaying the uptake of nitrogen gas and resulting in death through a more painful and terrifying mechanism, such as choking.

Judge Huffaker’s mask review, based on trying the mask on, is beyond the pale. After trying the mask, Judge Huffaker returned to the comfort of his own home. Trying on the mask and declaring it technically sound is not the same as trying the mask and taking a few breaths of nitrogen gas. This is in no way a scientific evaluation of this critical component of the proposed execution

While proponents of nitrogen gas execution highlight its non-noxious effects and the absence of a rise in carbon dioxide, the likely outcome of this method suggests a death that is both terrifying to experience and horrifying to witness.

Of Mice and Men

A group of Swiss researchers conducted research in 2019 on the comparative humanity of nitrogen versus carbon dioxide in euthanizing mice. Their conclusion? That nitrogen did produce a fear response, raising questions about its ethical use as a mouse execution method, and that further studies would be required to determine whether nitrogen would be a suitable euthanasia agent for mice.

As a human being, one would hope Smith would be afforded at least the same ethical considerations granted to mice. But in contrast to the Swiss researchers, ADOC, is prepared to attempt to kill Smith despite the unknowns, making liberal use of redactions in their data.

In John Steinbeck’s novel Of Mice and Men, George Milton says to Lennie Small: “Trouble with mice is you always kill ’em.” Ironically, it’s George who shoots Lennie in the back of the head. Mice shouldn’t be gassed to death with nitrogen unless and until it’s conclusively and scientifically proven that it does not cause needless suffering and cruelty. Nor should men like Kenneth Smith.

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