By Joel Zivot, MD, MA, JM

Alabama death row prisoner Kenneth Smith may only have days to live. Perhaps in anticipation of his execution, it has been reported that he is "sick in his stomach" and has been vomiting most days. He is scheduled to be the first person in the world executed by the forced inhalation of nitrogen gas.

Several years ago, Smith and other death row prisoners had opted for nitrogen gas execution over lethal injection when the state of Alabama gave every inmate on death row a choice between the two. In November 2022, Alabama nevertheless tried to kill Smith with lethal injection and failed. Despite several hours of trying, an IV necessary for a lethal injection execution could not be started.

With nitrogen gas execution now apparently ready, the state is hell bent on trying to kill Smith by this unprecedented method. No IV is required.

Method and Details Matter

Lethal injection has been struggling to hang on for some time owing to difficulties in obtaining the necessary pharmaceuticals and somewhat frequent displays of botched procedures. All of this is shrouded in state-imposed secrecy and often not subject to public scrutiny.

In the latest display of secrecy, Alabama has refused to be forthcoming with the fine details of execution by forced nitrogen gas inhalation. As a result, Smith cannot adequately make a legal defense. Bizarrely, a federal court judge involved in the case, having heard and denied Smith's latest complaint, revealed he had tried on the gas mask and found he was "able to breathe comfortably" and that based on its design, it was "unlikely that the mask would dislodge or that the seal would be broken." This sort of death row prisoner cosplay seems a rather poor attempt at any sort of detailed evaluation.

When it comes to executions, technical details matter a great deal. According to the plain language of the Eighth Amendment of the U.S. Constitution, punishment cannot be cruel. An execution may produce a corpse but still be unlawful. Further, the Supreme Court has declared that only it can opine as to meaning of cruelty. In Bucklew v. Precythe, Justice Neil Gorsuch essentially said that a method of execution cannot inherently be cruel. This court has never found any method of execution cruel.

Medical and Legal Expert Views on Cruel Punishment

Although the execution is scheduled for this week, it's likely it will instead end up before the Supreme Court due to a flurry of legal challenges from Smith.

In November 2023, human rights professor Jon Yorke, PhD, LLM, and I submitted a formal complaint to the U.N. Our concern focused on the serious potential that the use of nitrogen gas for execution would result in a tortuous death. In reply, the U.N. human rights office recently called on the state of Alabama to halt this first planned execution by nitrogen gas, saying it could amount to torture and violate U.S. commitments under international law.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by unanimous agreement of the U.N. General Assembly on December 10, 1984. The U.S. signed this agreement on April 18, 1988. To date, 173 countries have ratified the convention. The U.S. ratified the treaty in October 1994. As a ratifying party, the U.S. is obligated to comply with the provisions of the treaty just as it would for any other domestic law.

Inert gases like nitrogen can of course cause death. We know this through our understanding of the chemistry of nitrogen and the biology of the human body. Reports exist of accidental death by nitrogen gas from accidental industry exposure and some animal research; these reports give us a sense of the potential experience of a nitrogen gas execution. An early study using nitrogen gas to study hypoxia in healthy volunteers observed generalized seizures in virtually all study participants after 15-20 seconds of breathing nitrogen.

Aspiration is another possibility: If Smith's last meal is fried chicken, he may aspirate that partially digested and acidified meal, now held on his face and in his airway. The state of Alabama has indicated that active vomiting during his execution would not be a reason to call it off, saying they would not halt the execution if the nitrogen gas had begun flowing.

Questions about the goodness or badness of Smith's character in determining whether to proceed with nitrogen gas execution are moot. Physicians understand this sentiment. All patients are entitled to the same care. We ask for no character test to be deserving of our treatment. However, while lethal injection impersonates a medical act, it is nothing of the sort.

Others Are at Risk

Smith isn't the only person involved in his execution. The mask will allow the egress of exhaled carbon dioxide, and presumably nitrogen gas. If the mask fit is imperfect, nitrogen gas could leak around the edges and air may be entrained. As nitrogen gas is odorless, colorless, and non-noxious to breathe, anyone standing near Smith may join him in injury and death.

The state has requested the signing of a form by Smith's spiritual advisor Rev. Jeff Hood -- who would be in the room during the execution -- indicating that he must stand at least 3 feet away during the process to limit his risk in the "highly unlikely event that the hose supplying breathing gas to the mask were to detach." This risk would apply to anyone else in the room. It is not knowable just how nitrogen rich the immediate atmosphere will be.

Between the power of the Supreme Court to control the meaning of cruelty and the broad immunity against litigation enjoyed by the state, the prospects for Smith are grim. Beyond my deep concerns about the undue cruelty of the nitrogen gas approach, I can't imagine any justification for putting others at risk in an attempt to complete an execution. This must be stopped.