Alabama's Disastrous New Execution Method Is Hitting the Road Anyway

As their predecessors did with lethal injection, prison officials are pushing to adopt nitrogen gas asphyxiation despite evidence it doesn't deliver on its promises.

The world’s first execution by nitrogen gas asphyxiation is in the books, and it went like you were warned it would. Far from the 15 seconds to unconsciousness promised by Alabama’s protocol (written by a criminal justice professor with no medical background), Smith was “gasping for air“ and convulsing for at least four minutes following the time his breathing air was cut and nitrogen turned on, according to Marty Roney of the Montgomery Advertiser. Lee Hedgepeth, a reporter covering Smith’s family on the day of the execution and who also witnessed the execution, describes a full ten minutes of struggling against the restraints and making a “visible effort to breathe.“ Smith’s pastor Rev. Jeff Hood described it as “the most horrifying thing I’ve ever seen“ and said even the corrections officers involved were unsettled. These were not unforeseeable consequences: doctors specializing in anesthesiology and assisted suicide noted a high likelihood of failure, and the state itself forced Smith to go 20 hours without food, afraid that he might aspirate the vomit he was known to be coughing up—compounding his suffering in the hopes of ending the 500-year search for the humane execution method.

Thus beset by too many warnings to call it unexpected, Alabama instead decided to argue it was Smith’s fault. Along with the de rigeur reference tough-on-crime politicians have to make to Smith’s admittedly awful deeds, Alabama Governor Kay Ivey made no mention of the bold experiment the state was so proud of earlier in the day, instead merely pointing out that “the execution was lawfully carried out by nitrogen hypoxia, the method previously requested by Mr. Smith as an alternative to lethal injection.” Alabama Department of Corrections Commissioner John Hamm went even further, blaming Smith for “holding his breath” before defending the execution method, stating that any signs of trouble were “involuntary movements“ or “agonal breathing.“ The latter statement doesn’t comport with witness statements in physiological terms—agonal breathing is an occasional gasp amid bouts of apnea, not the active effort described by neutral witnesses—but continues in a long tradition of executioners playing doctor.¹ Hamm’s uninformed but convenient defenses were enough for Alabama Attorney General Steve Marshall to declare it a “textbook“ execution, and offer aid to any state thinking of adopting the method: “Alabama has done it, and now so can you. And we stand ready to assist you in implementing this method in your states.” Several are ready to take him up on his offer.

Oklahoma—as with lethal injection, the birthplace of nitrogen gas asphyxiation—has already approved the method, along with Mississippi, and Ohio lawmakers have proposed joining them. Though Governor Mike DeWine is lukewarm on capital punishment (or at least on restarting it in Ohio), Attorney General Dave Yost endorsed the effort, proposing that “nitrogen—widely available and easy to manufacture—can break the impasse of unavailability of drugs for lethal injection.” This echoes a common complaint, where “left-wing radicals“ as described by Mississippi Congressman Andy Gipson engage in what Justice Samuel Alito described as a “guerrilla war” against the death penalty…by letting companies that don’t want to be involved make their own informed decisions. Nebraska Republican Loren Lippincott, meanwhile, introduced a bill to authorize the method there; to his credit, he at least remembered to make the argument, wrong though it appears to be, that it would be “humane.”

On Kenneth Smith’s execution day, I predicted that “they’ll probably get away with lying about how well it works” as they did with lethal injection. Two weeks in, it’s actually worse: most of them aren’t even pretending to care.

1. I’d also argue that the first statement doesn’t make sense—punishment is involuntary and shouldn’t require the subject’s cooperation to avoid being cruel and unusual—but that’s beyond our scope here.