United Nations experts raise alarm over Alabama nitrogen execution

Death row inmate Kenneth Smith set to be executed by nitrogen hypoxia
No state has used this method of execution before
UN says it could subject Smith to torture, "cruel, inhuman" treatment

Updated: Jan 5, 2024 / 05:03 PM CST

This undated photo provided by Alabama Department of Corrections shows inmate Kenneth Eugene Smith, who was convicted in a 1988 murder-for-hire slaying of a preacher’s wife. The Alabama attorney general’s office on Friday, Aug. 25, 2023 asked the state Supreme Court to set an execution date for death row inmate Kenneth Smith. Alabama plans to put him to death by nitrogen hypoxia, an execution method that is authorized in three states but has never been used.(Alabama Department of Corrections via AP).

(NewsNation) — A panel of United Nations experts is appealing to federal and state authorities in the U.S. and Alabama to stop a nitrogen hypoxia execution as they say it may subject a death row inmate to “cruel, inhuman or degrading treatment or even torture.”

Experts, in a statement, said they were concerned about the possibility of “grave suffering” that pure nitrogen inhalation might cause Kenneth Smith, who is scheduled to be executed Jan. 25 in Alabama.

Nitrogen hypoxia has been authorized as an execution method in Alabama, Oklahoma and Mississippi, though no state has used it yet.

Smith was one of two men convicted in the 1988 murder-for-hire of a preacher’s wife. Prosecutors said Smith and another man were each paid $1,000 to kill Elizabeth Dorlene Sennett on behalf of her husband, who was in debt and wanted to collect on insurance.

Although a jury voted 11-1 to give him life in prison without parole, the judge overrode its recommendation, Al.com reports, and sentenced Smith to death.

In 2022, the Alabama Department of Corrections tried executing Smith by lethal injection, but authorities were not able to connect the required two intravenous lines to him.

However, the next year, the state Supreme Court, in a 6-2 decision, said the state can execute an inmate with nitrogen gas. Alabama Attorney General Steve Marshall, according to the Associated Press, said at the time the ruling had “cleared the way” for execution by nitrogen hypoxia after Sennett’s family “waited an unconscionable 35 years to see justice served.”

Advocacy groups and lawyers representing death row inmates criticized the decision, saying the execution method is experimental and the state did not give enough information about how it is going to work.

Smith’s attorneys had asked the state Supreme Court to reject the nitrogen hypoxia execution request, arguing that Smith should not be a ”test subject” for the new execution method.

U.N. experts warned in their statement that “experimental executions by gas asphyxiation – such as nitrogen hypoxia – will likely violate the prohibition on torture and other cruel, inhuman or degrading punishment.”

Nitrogen, which makes up 78% of the air humans breathe, is harmless when inhaled with proper oxygen levels. The AP writes that under proposed procedures, a nitrogen hypoxia execution would be conducted by placing a mask over the inmate’s nose and mouth and then replacing their breathing air with nitrogen.

The nitrogen “will be administered for 15 minutes or five minutes following a flatline indication on the EKG, whichever is longer,” execution protocol states, according to the AP.

The panel of experts who made the U.N. statement Friday is made up of Morris Tidball-Binz, special rapporteur on extrajudicial, summary or arbitrary executions; Alice Jill Edwards, special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; Tlaeng Mofokeng, special rapporteur the right to physical and mental health; and Margaret Satterthwaite, special rapporteur on the independence of judges and lawyers.

The Associated Press contributed to this report.