The eyes of the world will soon be on an Alabama inmate who has been sat on death row for 35 years.
Kenneth Eugene Smith, 58, is a convicted murderer who is set to be the first ever US prisoner to be executed using nitrogen gas – which has never been officially tested – on Thursday.
Experts have called into question the legalities and ethical issues surrounding this decision, and recently filed a 60-page complaint about Smith’s upcoming execution to the United Nations.
The UN issued a press release earlier this month expressing ‘alarm’ over the execution, and called for it to be halted pending a review citing concerns Smith may be subjected to inhuman, cruel or degrading treatment.
One such expert, Dr Joel Zivot, speaks to Metro.co.uk about the ethical issues that he believes must be considered before the execution is allowed to go ahead.
The senior fellow at Emory University in Atlanta, Georgia says: ‘It’s set to be the first official use of nitrogen gas execution and in the United States, Alabama is trying to be the first to do so. No one knows about it – it’s never been done anywhere in the world on purpose before.’
Some 55 countries still use capital punishment – the state-sanctioned killing of a person as a punishment for a crime – and it is legal in 27 out of 50 US states.
Kenneth Eugene Smith, 58, is set to be the first ever US prisoner to be executed using nitrogen gas on Thursday (Picture: Reuters)
At the beginning of 2023 there were just over 2,300 inmates on death row in the US, according to the Death Penalty Information Center.
There have been 1,582 executions in the country since 1976, and 24 people were killed in 2023. An average of nearly four wrongly convicted prisoners are released each year with evidence of their innocence.
Since 1982 the lethal injection has been the most common form of execution method used to carry out capital punishment in the US, though the electric chair has still be used in some cases.
Why is nitrogen gas being used now?
But the lethal injection has run into issues in recent years after dozens of US and European pharmaceutical manufacturers, such as Pfizer, blocked the supply of their drugs for capital punishment.
As a result, nitrogen hypoxia – the practice of replacing air with pure nitrogen through a respirator mask to deprive a prisoner of oxygen – has been authorised for use in Alabama, Oklahoma and Mississippi, despite its lack of testing.
Professor Jon Yorke, director of the Centre for Human Rights at Birmingham City University, tells Metro.co.uk: ‘Why it’s being used now is to do with the medicalisation of the death penalty.
‘Historically, what the United States has tried to do is minimise the visual trauma of an execution so it doesn’t offend the sentiments of those who are witnessing it, and then the stories of the horrible act of the government gets out.
‘When the United States became the United States, the execution method was either hanging or the firing squad, and then with Thomas Edison we had the invention of electricity – the light bulb – and then that became the electric chair.
Professor Jon Yorke is the director of the Centre for Human Rights at Birmingham City University in the UK and speaks on the death penalty regularly (Picture: Eliza Harris / Amicus)
Alabama’s lethal injection chamber at the Holman Correctional Facility, which has been used for executions in the state up until now (Picture: AP)
‘After that we had the gas chamber and the lethal injection, and now nitrogen gas inhalation.
‘But with the lethal injection, there has been so much transparency with the production of the chemicals that the manufacturers have been shown that the production of a substance can now cause human rights violation to executions.
‘So fewer of those companies want to give different substances for execution, and what the States have tried to do is come up with another idea.’
Is Eugene Kenneth Smith a ‘guinea pig’?
Dr Zivot speaks about the concern of Smith being used as a ‘guinea pig’ for this form of execution, which could potentially be considered a form of torture.
He adds: ‘The law turns on this idea that punishment can’t be cruel. But if you ask someone who is dead whether they thought their own death was cruel, one would imagine they may all say yes – so it turns out that the role of the witness is very important.
‘So when people watch it, they think, okay, nothing really bad happened there, and also the body remains outwardly pristine. And so for a long time, this was, I think, the myth of lethal injection – you don’t see much, and the assumption was if something was outwardly benign, it was inwardly benign. And that has been the problem.’
Dr Zivot says his own research – which involves reviewing autopsies of executed people – shows that 80% of the time after the lethal injection prisoners experience a pulmonary edema, where the lungs fill with bloody fluid and essentially causes drowning.
He explains: ‘Now, we know that when people die by suicide, that drowning is an extremely uncommon choice that people elect to kill themselves. And it’s difficult to test this but the common impression of people who have been in water and almost drowned is terrifying.
Dr Joel Zivot spoke about how this form of execution could potentially be considered a form of torture
Dr Zivot, left, and Professor Yorke, centre, spoke at a panel in London last week about nitrogen hypoxia (Picture: Eliza Harris / Amicus)
‘But maybe people have pushed back and argued that it’s brief – it’s just a short period of time.
‘I would ask, how long can you torture someone for it to be lawful? So if it’s just 10 seconds of torture, is it okay? How much torture is acceptable?
‘And most people, I think, would not like to endure even seconds of torture. Any amount of torture should clearly not be present.’
So what’s the difference between the use of a lethal injection and nitrogen gas?
As it has never been used before in capital punishment, experts can only predict what might happen.
‘What I think is particularly troubling about nitrogen gas is of course, a prisoner must participate and basically kill themselves,’ Dr Zivot explains.
‘They have to help because they have to breathe. We can’t stop breathing, so we can try and hold our breath. And it’s conceivable that [a prisoner] may begin by trying to simply hold his breath.
‘But at some point, he’ll have to breathe. So in a sense, he is the enabler of his own death through his own natural breathing.’
He says another concern is that the nitrogen gas may cause a prisoner to choke to death on their own vomit – bringing back up the inmate’s chosen ‘last meal’ of their life.
Sian Elvin interviewing Professor Yorke and Dr Zivot over Zoom call (Picture: Eliza Harris / Amicus)
Smith is currently on death row at the William C. Holman Correctional Facility in Atmore, Alabama (Picture: AP)
He has been sat on death row for 35 years (Picture: AP)
Dr Zivot also notes that nitrogen gas will not only be inhaled, but exhaled into the atmosphere by the prisoner in the usual place of carbon dioxide.
‘In comparison, where lethal injection is clearly targeted to only kill the prisoner, nitrogen gas puts anybody in the facility on as well as the inmate at risk,’ he says.
The Alabama attorney general’s office told the Court of Appeal the execution should go ahead, with its solicitor general Edmund LaCour adding: ‘Alabama has adopted the most painless and humane method of execution known to man.’
Professor Yorke is calling for the US to provide an ‘adequate assessment of the science’ which adheres to international law, domestic law and the international human rights treaty the ICCPR.
From a legal perspective, he says there is currently ‘an unreasonable burden of proof’ placed on the prisoner to firstly prove torture is intentionally being inflicted through the chosen technique, and secondly come up with an alternative method of execution.
‘What the United States has done is put the burden on the people [and their lawyers] to create their own death, which is totally quixotic, it’s inhumane, it’s barbaric, it’s just awful,’ Professor Yorke adds.
Eugene Kenneth Smith’s conviction
Smith was convicted of the murder of Elizabeth Sennett in Colbert County, Alabama, in 1988 after her husband Charles recruited people to kill her.
The experts hope to raise awareness that the new nitrogen hypoxia method is being used (Picture: Eliza Harris / Amicus)
The electric chair has previously been used at Holman Prison for executions (Picture: Bettmann Archive)
John Parker, who was executed via lethal injection in 2010, was also convicted of murder and was the person who physically stabbed Elizabeth to death. Smith claimed and maintained that he did not know Parker had a knife, or that a murder was about to occur.
Smith appealed his conviction and was given a second trial in 1996, after which he was also sentenced to death.
Alabama attempted to execute Smith by lethal injection in 2022, but the execution was called off because authorities were unable to connect the intravenous lines to his veins.
Smith was strapped to the gurney for nearly four hours during that execution attempt.
Metro.co.uk has not made an attempt to contact Smith in Holman Prison regarding his execution, due to his diagnosis of post-traumatic stress disorder.
‘Everything he say, is clouded under his current mental health condition, and the stress and the trauma that he’s experienced,’ Professor Yorke explains.
‘He was subjected to hours of needle stabbings across his body, he was turned upside down like an upside-down crucifix so that they could they try to alter the blood flow to see if they could find his vein – but he’s never recovered from his spinal injuries.
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‘So everything that he says, must be read through the lens of his mental health and his physical health.’
Smith’s lawyers argued after surviving one execution attempt, it would violate the US ban on cruel and unusual punishment for the state to make a second attempt to execute him.
Professor Yorke and Dr Zivot spoke at a panel in London last week – organised by UK charity Amicus which fights for access to justice and a fair process for those on death row in the US – to raise awareness that the new nitrogen hypoxia method is being used.
Dr Zivot concluded: ‘Public opinion here is powerful. It seems that the judicial process is not going to be helpful, and does not seem to want to find a way of making this stop.
‘The court is supposed to not be too far ahead of public opinion, but it also can’t be too far behind it.
‘I don’t think it reflects well on the US in this case… so I think we’re hoping there’ll be conversation and there’ll be attention, and at some point Alabama will take note.’
READ MORE: ‘I write letters to prisoners on death row every week – and here’s why’
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The eyes of the world will soon be on an Alabama prisoner who has sat on death row for almost 35 years.
