UNITED STATES. An Alabama death row inmate is expected to become the first person in the United States, and the world, to be executed using nitrogen gas after losing a last-minute appeal.
The U.S. Supreme Court and a lower appeals court refused to block what Kenneth Eugene Smith's lawyers called a “cruel and unusual” punishment. Opponents argue that using nitrogen could cause unnecessary suffering and that a leak could also harm people in the room. Alabama previously attempted to execute Smith by lethal injection two years ago, but failed to find a vein before the state's death warrant expired.
Kenneth Eugene Smith, 58, was convicted in 1989 of the murder of Elizabeth Sennett. Alabama has 30 hours to carry out the execution, which involves pumping nitrogen gas through a mask, starting at 1 a.m. Friday EST. Lawyers for the inmate, who has been on death row since 1996, said Wednesday evening that they were filing another appeal to the nation's highest court in the hope of winning a last-minute reprieve.
Alabama said in a court document that it expects him to lose consciousness within seconds and die within minutes. But its use has been denounced by some medical professionals, who warn that it could cause a range of catastrophic incidents, ranging from violent convulsions to survival in a vegetative state. Alabama and two other US states have approved the use of nitrogen hypoxia as an alternative execution method because the drugs used for lethal injections have become harder to obtain, contributing to a decline in the number of executions nationwide. Smith would be the first person to be executed by this method in the United States and, according to the Death Penalty Information Center, worldwide.
The murder he is accused of
Smith was one of two men convicted in the March 1988 murder of the 45-year-old Sennett in a $1,000 hit-for-hire. The woman was beaten with a fireplace tool and stabbed in the chest and neck, and her death was staged to look like a home invasion and burglary. Her husband Charles Sennett, a debt-ridden preacher, had orchestrated the plan to collect the insurance money. He killed himself as investigators approached. Smith's partner, John Forrest Parker, was executed in 2010. At trial Smith admitted being present when the victim was killed, but said he had taken no part in the murder.
The judicial fight to avoid the death penalty with nitrogen by Kenneth Eugene Smith
Smith's lawyers have filed an appeal to the Supreme Court, arguing that subjecting convicts to multiple execution attempts violates the Eighth Amendment of the U.S. Constitution, which protects against “cruel and unusual” punishment. On Wednesday, the judges refused to hear the appeal and rejected the request to stop the execution. No judge publicly dissented from the ruling.
Smith also filed a separate legal challenge in the U.S. Court of Appeals for the 11th Circuit, where he challenged the legality of Alabama's nitrogen gas protocol. But this court also rejected the prisoner's request for an injunction in a ruling Wednesday evening. Smith's lawyers said they will appeal again to the Supreme Court. His lawyers argue that the nitrogen gas method is “recently introduced and untested”, leaving the inmate at risk of choking on his own vomit. State Attorney General Steve Marshall had already called it “perhaps the most humane execution method ever devised.”
Smith's spiritual advisor, the Rev. Jeff Hood, will be in the room at the time of the execution. He said he believed he would be in danger if the nitrogen were to leak.
Data on the death penalty in Alabama
Alabama has one of the highest per capita execution rates in the United States and has 165 people currently on death row. Since 2018, the state has been responsible for three failed lethal injection attempts in which those convicted survived. The failures led to an internal review that placed the blame largely on the prisoners themselves.
How the death penalty for nitrogen gas occurs
Nitrogen, a colourless, odourless, non-flammable, chemically stable, non-toxic gas, becomes asphyxiating in case of excessive concentration in the air and therefore lack of oxygen. It is present for 78.1% in the air we breathe. The execution protocol, described in a document filed in court by the state authorities and cited by AbcNews, provides that after being tied to the stretcher, the inmate is applied to his face with a “compressed air respirator, a type of mask typically used in industrial environments to provide life-saving oxygen.” Smith will then be read the reasons for the sentence and asked if he has anything to say before the “nitrogen hypoxia system” is activated from another room. Nitrogen gas will be administered for at least 15 minutes or “five minutes after the flat pattern appears on the ECG.”
«What is known is that nitrogen gas, under certain circumstances, can cause death – explains Joel Zivot, associate professor of anesthesiology at Emory University's School of Medicine, quoted by USA Today – But as for exactly how it works, no it's still clear.” Much of what is recorded in medical journals about death from nitrogen exposure comes from industrial accidents and suicide attempts. Among the risks associated with the method, according to anesthesiologist Joel Zivot, there are convulsions, suffocation from vomit, the entry of air inside the mask which could prolong the execution, not lead to death but cause a cerebrovascular accident or reduce to a vegetative state”.
Criticisms on the use of nitrogen
«Using nitrogen for a capital execution is treating a man like a woodworm because it is the same procedure that is used to eliminate the parasite from wooden furniture when it is deprived of oxygen. Personally I don't consider it a correct choice, we are not insects.” Thus Antonio Sapone, specialist in Forensic Medicine from Rome. According to the medical examiner, in this procedure with the nitrogen mask, «the difference is made by the sedation and, if it is foreseen» Kenneth Eugene Smith «will not notice the asphyxia caused by the lack of oxygen and death will come in a very short time within 10 minutes. If sedation is not foreseen, things are different and he will suffer during asphyxiation with the nitrogen mask.” But what is behind the choice of this method? Is it more effective than others or is there an economic issue? «It is effective – replies the medical examiner – nitrogen is not toxic but it deprives the brain, a much more sensitive organ than others, of oxygen. Thus the metabolism of the organ quickly stops and death occurs.”
The attack by NGOs
“The cruel, planned execution of Kenneth Smith by the State of Alabama must be stopped.” AND' the appeal launched by Amnesty International. «The death penalty is a cruel, inhuman and degrading punishment. We invite Alabama governor Kay Ivey to use her clemency power to stop the execution before it is too late – we read in a note from Justin Mazzola, a researcher for the organization, who recalls that «this execution will be carried out with gas absolute nitrogen, a method never used before, on a man who was subjected to a cruel and failed execution attempt just 14 months ago.” The Office of the United Nations High Commissioner for Human Rights has «underlined that this new, untested method could be extremely painful, lead to a botched execution and could amount to torture or other cruel, inhuman or degrading treatment or punishment, violating thus the international human rights treaties that the United States has ratified. The time has come to abolish the death penalty.”
«Save the life of Kenneth Smith: especially in these times of war, the culture of life beats that of death which is barbarizing all of humanity. It's the appeal that the Community of Sant'Egidio launched a press conference to stop the execution of Kenneth Eugene Smith. “This new execution using nitrogen could set a new standard of inhumanity in the world, and particularly for the state of Alabama,” he stressed. Mario Marazziti, co-founder of the World Coalition Against the Death Penalty, meeting the press at the headquarters of the Community of Sant'Egidio. «The great campaigns for the conquest of civil rights began in this state in the 1960s led by Martin Luther King. Here there was the bus strike after the Rosa Parks protest, the Selma march. We must prevent Alabama from staining itself with indelible shame by entering history for this barbaric record. As happened then, even now, if the governor were not to save Kenneth's life at the last minute, Italy, Europe, but also businesses, would have to protest, discouraging tourism, investments, in short, weakening economic relations with this State”. If this execution takes place, Marazziti hoped, the Western world should rethink where to invest in America, «because every Italian or European penny used in Alabama will benefit a system that considers this execution a normal fact. And all this goes against Italian and European policies to stop the death penalty in the world”
“An emblematic case of the unsustainability of the death penalty and the search for a 'humane' method of killing.” Judge with these words, Elisabetta Zamparutti, fra the founders of Hands Off Cain, the execution of Kenneth Eugene Smith, who has been on death row in Alabama since 1996. Zamparutti recalls that «Smith had already survived an execution attempt with a lethal injection, 'the gentlest method', which however did not prove to be such at all. In this crazy and senseless search for death, nitrogen was conceived, a method of suffocation that once again underlines the existence of a scaffold paradigm, of a vengeful justice that we should free ourselves from. It is a justice that leaves no room for hope and grace for a man convicted almost 30 years ago. Even countries like Iran expect life to be saved if something goes wrong during the execution. In America, however, people even change the method in order to kill.”
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