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Will other states follow Alabama’s lead on nitrogen execution?

U.S. Fish and Wildlife

Alabama's first-ever use of nitrogen gas for an execution could gain traction among other states and change how the death penalty is carried out in the United States, much like lethal injection did more than 40 years ago, according to experts on capital punishment. APR News raised this issue in its national coverage on NPR.

Alabama Attorney General Steve Marshall said Friday that the execution of Kenneth Eugene Smith, a 58-year-old convicted of a 1988 murder-for-hire, went off as planned and his office is ready to help other states if they want to begin nitrogen executions.

"Alabama has done it, and now so can you," Marshall said at a news conference.

At least some prison officials in other states say they hope to closely analyze how the process worked in Alabama and whether to replicate it in their states. Oklahoma and Mississippi already have laws authorizing the use of nitrogen gas for executions, and some other states, including Nebraska, have introduced measures this year to add it as an option.

"Our intentions are if this works and it's humane and we can, absolutely we'll want to use it," said Steven Harpe, director of Oklahoma's prison system.

After being outfitted with a face mask that forced him to breathe pure nitrogen and deprived him of oxygen, Smith shook and writhed on the gurney for at least two minutes during Thursday night's execution at an Alabama prison before his breathing stopped and he was declared dead.

Alabama Corrections Commissioner John Q. Hamm described Smith's shaking as involuntary movements and said nothing was out of the ordinary during the procedure.

"That was all expected and was in the side effects that we've seen or researched on nitrogen hypoxia," Hamm said.

The United States has a long history of developing methods of execution that quickly become widely adopted, starting with electrocution in the early 1900s to replace hangings, followed by the gas chamber and ultimately lethal injection, which was developed by an Oklahoma doctor in the 1970s.

APR News discussed the possible aftermath of Alabama’s nitrogen gas execution with Maurice Chammah. He’s a staff writer with the non-profit, non-partisan, criminal justice journalism group The Marshall Project. He was quoted in APR’s national coverage of the Smith execution for NPR.

“Well, 40 years ago, they started using lethal injection and at first it appeared to be, you know, a kind of foolproof method that was replacing electrocution and hanging and other kind of more grisly methods,” said Chammah. “But over time, as they carried out more and more lethal injections, more and more things went wrong and everything that can go wrong, you know, eventually did whether it was a problem with the purity of the drugs, or the difficulties of finding a vein.”

Oklahoma was the first state to contemplate the use of nitrogen gas nearly a decade ago after the 2014 botched execution of Clayton Lockett who clenched his teeth, moaned and writhed on the gurney before a doctor noticed a problem with the intravenous line and the execution was called off before Lockett died, 43 minutes after the procedure began. A later investigation revealed the IV had become dislodged and the lethal chemicals were pumped into the tissue surrounding the injection site instead of into his bloodstream.

Numerous other states, including Alabama, have had problems for years administering lethal injection or obtaining the deadly drugs, particularly as manufacturers, many of them based in Europe, have objected to their drugs being used to kill people and prohibited their sale to corrections departments or stopped manufacturing them altogether.

“I think, if other states were to adopt nitrogen hypoxia, as a method of execution, beyond Alabama, and already Oklahoma, has said that it's willing to try this as well,” said Maurice Chammah of The Marshall Project. “The higher the number of executions, the more you're going to see things go wrong because ultimately, there's no kind of foolproof way to execute a human being with kind of pseudo medical technology.”

Even as some death penalty states remain committed to pursuing the executions, capital punishment is undergoing a yearslong decline of use and support, and more Americans now believe the death penalty is being administered unfairly, according to a recent annual report.

A majority of states, 29, have either abolished the death penalty or paused executions, and there were just 24 executions carried out in five U.S. states in 2023, according to Washington, D.C.-based Death Penalty Information Center.

Ryan Kiesel, a former Oklahoma legislator and civil rights attorney who fought against Oklahoma's efforts to approve nitrogen gas as then-director of the state chapter of the American Civil Liberties Union, said the continued push for a new method is a futile attempt by states to sanitize a violent act.

"Perhaps instead of trying to move to more and more palatable ways of killing someone, if a state wants to have a death penalty, they should have a method that reflects the violent act that execution is," Kiesel said. "If we can't stomach it, we shouldn't do it."

Pat Duggins is news director for Alabama Public Radio.
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