Alabama AG Hails "Historic" and "Humane" Execution by Nitrogen Gas After Condemned Man Shook and Writhed for Minutes, Pulling Against Restraints

On Thursday night, Alabama carried out the first-ever U.S. execution of a human being by nitrogen gas when it used that method to kill Kenneth Eugene Smith. According to the AP report:

The execution took about 22 minutes from the time between the opening and closing of the curtains to the viewing room. Smith appeared to remain conscious for several minutes. For at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints. That was followed by several minutes of heavy breathing, until breathing was no longer perceptible.

While recounting the same details, the New York Times reports that "Alabama attorney general, Steve Marshall, hailed the execution as a 'historic' breakthrough." That reaction might most charitably be attributed to confirmation bias, given that Smith apparently suffered terribly. Shaking and writhing while conscious are typically signs of extreme distress. Thus, the execution seems to have vindicated the fears of those who protested that nitrogen asphyxiation would be cruel.

Was it unconstitutionally cruel? As I mentioned in Friday's post, our Foucaultian Supreme Court, speaking through Justice Alito, has made clear that a method of execution is not unconstitutionally cruel unless it is more cruel than an available alternative method of execution that the condemned must identify.

Alabama law provides that "a death sentence shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution or nitrogen hypoxia." As a practical matter, lethal injection was not an option for Smith, whom the state attempted to execute using that method in 2022. The executioners gave up after four hours of trying without success to start an intravenous line. Smith might have chosen electrocution, but despite the fact that the electric chair was touted as humane when first introduced (as just about every new method of execution is touted), it is often anything but. Professor Deborah Denno's canvassing of the history of botched executions--including the electric chair--provides more than enough reason for anyone fated to be executed to wish to avoid electrocution.

Not convinced? Here's a description of the execution of John Evans by electrocution in Alabama in 1983:

After the first jolt of electricity, sparks and flames erupted from the electrode attached to Evans’s leg. The electrode burst from the strap holding it in place and caught on fire. Smoke and sparks also came out from under the hood in the vicinity of Evans’s left temple. Two physicians entered the chamber and found a heartbeat. The electrode was reattached to his leg, and another jolt of electricity was applied. This resulted in more smoke and burning flesh. Again the doctors found a heartbeat. Ignoring the pleas of Evans’s lawyer, a third jolt of electricity was applied. The execution took 14 minutes and left Evans’s body charred and smoldering.

So yes, it's understandable that faced with the choice between lethal injection--which had already failed and thus led to his four-hour torture--electrocution--with its own horrid record--and the previously untried method of nitrogen hypoxia, Smith would choose the unknown possible devil rather than either of the two known devils.

Moreover, there's a scientific theory that offers a reason to think nitrogen hypoxia might be painless. The sensation of asphyxiation we associate with not being able to breathe is supposedly caused by the buildup of carbon dioxide, not by the lack of oxygen. Earth's atmosphere is more than three-quarters nitrogen so, the reasoning goes, the human body is able to take in nitrogen. A person who breathes in only pure nitrogen dies of oxygen deprivation but doesn't experience the discomfort associated with carbon dioxide buildup.

That's the theory. Is it true? We have some evidence from the meat industry. For over 20 years, PETA has been advocating "controlled atmosphere killing" for chickens and turkeys, which is premised on the same theory. But:

(1) Long-time readers of this blog (including, say, this essay) know that, while I think that many well-intentioned people work at PETA and the organization does some very useful work, its sexist campaigns undermine our cause and it hardly speaks for all of us who care about the wellbeing of non-human animals.

(2) Even PETA wasn't arguing that depriving birds of oxygen by substituting another gas is painless. The argument for hypoxia is that it's less cruel than other methods of animal slaughter--which typically means throat slitting for poultry. But of course, there are still less cruel ways to bring about death; for example, the euthanasia drugs commonly used for family pets or, in jurisdictions in which it's permitted, for humans. However, the meat industry won't use those drugs on chickens or turkeys because they're expensive and render the dead birds' meat toxic to humans who consume them.

(3) Even if there were very good evidence that chickens and turkeys die painless deaths from hypoxia, that wouldn't prove that it works the same way in humans. Most drugs that succeed in trials on mice--which, as mammals, are genetically much closer to humans than birds are--fail in humans, so extrapolating from chickens and turkeys to humans seems very risky.

And lo and behold, as the description of Smith's own experience at the top of this essay suggests, apparently nitrogen hypoxia is a nasty way for a human to die.

Is that enough for the next person condemned to die by nitrogen hypoxia to satisfy his burden of showing that nitrogen hypoxia is cruel? According to the Supreme Court, it depends on the alternatives. What are those alternatives? We might look to assisted suicide for clues, as presumably people looking to end their own lives would want to minimize suffering. A 2022 study available from the National Library of Medicine (within the U.S. NIH) reports:

The most common lethal drugs used by clinicians to assist suicide were high doses of barbiturates, frequently either pentobarbital or secobarbital. Very high-dose barbiturates have long been a popular method for assisted suicide and are recommended both by the Netherland’s Guidelines for the Practice of Euthanasia and Physician-Assisted Suicide and the Canadian Association of MAiD Assessors and Providers’ oral MAiD medication protocol.

However, one might argue that this method is not available. As the report goes on to note, the drugs have become increasingly expensive and even unavailable, especially as European (and other) drug makers have restricted supply due to opposition to their use in carrying out the death penalty. (See my Postscript below for more on this point.) 

Meanwhile, even if lethal doses of barbiturate were available generally, they might not be available for someone like Smith, given the state's inability to insert an IV line in its first execution attempt. To be sure, oral administration is an alternative that is commonly used for euthanasia (both where it is legal and illegal), but that would have required Smith to participate in his own execution--which raises a whole range of additional questions. My tentative view is that a person sentenced to die should be allowed to choose oral self-administration of a lethal agent rather than some other method of execution but that oral administration should never be required (or deemed available) for those persons who do not wish to participate in their own execution.

Assuming that lethal drugs (whether administered by injection or orally) do not count as an available alternative, Smith still could have pointed to at least one available method of execution that appears to be substantially less cruel than nitrogen hypoxia: firing squad. As Justice Sotomayor (joined by Justice Breyer) wrote in a 2017 from denial of certiorari in another case from Alabama, there is substantial evidence that execution by firing squad is more humane than the other commonly used methods of execution. She also rejected the view of the Eleventh Circuit that the firing squad is unavailable because it is not authorized by Alabama law. 

To be sure, that was a dissent, but it was not a dissent on the merits. Thus, both points remain open. Taking them in reverse order, Justice Sotomayor is obviously correct that the firing squad is an available option. As a practical matter, by contrast with drugs used for execution, there is nothing resembling a shortage of rifles and bullets in the United States. Meanwhile, "available" within the meaning of this line of cases cannot possibly mean "available and authorized by state law." Otherwise, the state could render any method of execution immune from an Eighth Amendment challenge--breaking on the wheel, dismemberment by wild beasts, you-name-it--simply by making that method the exclusive means authorized by law.

As to the substantive question, the Supreme Court should be open to considering that any execution method is cruel relative to the firing squad. Whether it would accept such an argument is more doubtful, but only because of what we know about the Justices' dispositions with respect to the death penalty, not because of the facts and logic.


Postscript: Above I mentioned that drugs for execution are in short supply partly because the makers of those drugs do not want to participate in imposition of the death penalty. One might question the morality of refusing to supply drugs that could somewhat mitigate the cruelty of the death penalty. I will address that issue in a follow-up essay on Verdict on Wednesday (live at this link beginning at 12:00 am EST). It will likely come as no surprise to readers familiar with my work that in so doing, I shall compare the dilemma that confronts death penalty abolitionists with the issues that confront animal rights proponents when considering measures to reduce the cruelty of animal slaughter.