From the Precipice, Nitrogen Asphyxiation Looks a Lot Like Lethal Injection Did

Should we expect a better result when Alabama kills Kenny Smith via the new Great White Hope of the death penalty?

Photo by Taton Moïse on Unsplash

Note: This week’s newsletter is in large part a truncation of content from my book A Quiet Death: The Failure of Lethal Injection. I’ve been as diligent as possible about recreating the research, but some citations may be incomplete due to time constraints.

Three days from today, the Alabama Department of Corrections will kill Kenny Smith. This in itself is not extraordinary: America has averaged an execution every 26 days since the four-year moratorium imposed by Furman v. Georgia ended in 1976, with Alabama contributing one every eight months. And while the procedural route there—a jury of his peers gave him life, an elected judge decided otherwise—is unique to Alabama (the last state to abolish judicial override and the only one to regularly impose death sentences through it), it’s fairly routine for Alabama death sentences. It’s not even the first time Alabama’s tried to kill Kenny Smith, following an abortive attempt at lethal injection in 2023.

What’s new here is the method: while America has hanged, shot, electrocuted, and via multiple routes poisoned its prisoners, no state in the world has ever intentionally attempted to kill them solely by hypoxia. Thus on January 25th, 2024, the state of Alabama will step into history, strap a mask onto Smith’s face, pump in enough nitrogen to displace breathable air, and let him suffocate.

Though inert gas asphyxiation may seem similar to previous attempts at gassing the condemned (and is being prepared in tandem with a return to more Holocaust-like methods), the use of nitrogen works via a completely different physiology from the poison gases used before. Though we think of breathing in terms of oxygen and carbon dioxide, the air healthy humans are breathing right now is around 78% nitrogen, with oxygen taking up about 20% of the atmosphere. Since nitrogen has no inherent effect on the human body, the theory goes, humans can breathe in an oxygen-deficient environment until they lose consciousness and never even feel it. The idea has some support from the literature, with case studies like this one noting that patients under observation fell unconscious within seconds of breathing pure nitrogen and were not observed to feel any obvious distress. If it works as intended, humanity will have solved a problem it’s worked on since, conservatively, the Late Middle Ages: a clean, orderly execution method that causes pain neither to the subject nor to the civilized society that has to think about it.

The marginally astute reader will note that lethal injection was supposed to be the fulfillment of this dream, and it was backed by millions of anesthesia patients. And that’s not the only similarity between the new execution method to end them all and the old one.

Both Methods Were Born from an Unlikely Source
Though lethal injection had a brief role in Nazi euthanasia, its birth in earnest came from a death penalty opponent’s crisis of conscience. Bill Wiseman, a wayward preacher’s kid turned pragmatic Oklahoma state representative, had religious and practical objections to capital punishment, but in the post-Furman clamor to bring back the death penalty, but in the hang-’em-high Southwest and especially in the post-Furman clamor to bring back the death penalty, voting against the state’s new case-law-compliant capital sentencing scheme was tantamount to political suicide. Wiseman consoled himself by supporting a gutsier colleague’s amendment requiring humane executions, and scheduled a meeting with state medical examiner Jay Chapman to hash out a protocol for putting people to death via anesthesia (though the latter admitted he was “an expert in dead bodies, but not how they got that way.“)

Where Wiseman failed, Oklahoma criminal justice professorLawrence Gist was determined to succeed. Like Wiseman, Gist declared himself “an opponent of capitol [sic] punishment;” like Wiseman, he figured a good stop on the way to abolition was to make it more humane via a science he kind of understood. His 1995 article in National Review ended up in a report prepared by Oklahoma criminal justice professor Michael Copeland following that state’s disastrous execution of Clayton Lockett, and from there was even proposed by death row defendant Richard Glossip, who ultimately couldnt’ convince SCOTUS he was entitled to certainty he wouldn’t be tortured to death (even as they recently agreed to review whether he did it in the first place). The precedent set by Glossip v. Gross means that, although nitrogen gas executions were rejected as scientifically unsound when proposed by inmates themselves, the challenge raised by Smith’s lawyers likely won’t prevent his being subjected to it this week.

The People Who Know Best Want(ed) Nothing to Do with It
When Wiseman first proposed the idea of lethal injection to his personal physician—who happened to be president of the Oklahoma Medical Association—he was flatly told the association had no interest in conflating medicine with homicide. (A British task force studying the problem had come to the same conclusion about lethal injection and ultimately recommended abolition.) National associations for physicians, nurses, and paramedics have held out in their opposition to participating in capital punishment; a boycott by California anesthesiologists resulted in the effective end of capital punishment there.

Intentional asphyxiation naturally has far fewer experts available than anesthesia, but those who do exist aren’t any more enthusiastic about Alabama’s protocol. Philip Nitzschke, an Australian physician, assisted suicide advocate, and inventor of a nitrogen asphyxiation device was “appalled and devastated“ after inspecting Alabama’s death chamber. In addition to his general scruples about capital punishment, Nitzsche notes that his “Sarco pod“ relies on an open system surrounding the dying patient, as opposed to the crude mask Alabama intends to put on Smith. Alabama’s protocol also doesn’t contain any test of the mask’s fit to the face of the condemned, something anyone who’s ever worn a respirator can tell you is a crucial step; oxygen leaking into the environment could prolong his life and suffering. A leaky mask could also endanger the people around him: Smith’s spiritual advisor had to sign a waiver to be at his side as he dies.

The Method Is Spreading Even Before We Know Whether It Works
Lethal injection made Bill Wiseman a star even before it had been passed into law. The AP ran a story about Wiseman and the method on its “A“ wire shortly after its introduction, and lawmakers in multiple states were intrigued. Thus the first lethal injection wasn’t in the method’s home state: Texas passed a lethal injection law the day after Oklahoma did, and was able to march Charles Brooks, Jr. into the death chamber in Huntsville before Oklahoma’s judicial gears could grind fast enough.

Whether Brooks was also the first victim of a botched lethal injection is unclear. Brooks and Texas Monthly reporter Dick Reavis had worked out a signal (a shaking of the head) to show he was conscious and in pain, but Reavis couldn’t say for certain if he saw that signal or just some incidental movement, and the prison chaplain interpreted Muslim convert Brooks’s moans as attempts to say “Allahu akbar.” Either way, local college students (mostly pro-execution criminal justice majors) reported that the chatter around the prison and town was mostly about when the next execution would take place.

Oklahoma’s thunder is again getting stolen by Alabama, but only just. Oklahoma’s fast at work building its own chamber as a backup method, after securing a supply of lethal injection drugs by undisclosed means, and Mississippi has approved the method.¹

All without a clue whether it’s going to work. And just as tragically, secure in the knowledge that they’ll probably get away with lying about how well it works again.

1. Arizona is returning to gas executions as well, but has decided humane executions aren’t worth the trouble and returned to cyanide.