Nitrogen Hypoxia: An Innovation in American Government?

Because it has a monopoly on legal violence, government is in the business of killing people. Agencies that carry out killing, such as the military and the police, are constantly thinking about how to do it more efficiently. When capital punishment is practiced, as is the case in many of the American states, this thinking also applies to executions.

Trauma for Whom?

In choosing a method of execution, there are two often conflicting objectives, minimizing physical and psychological trauma to the condemned person to avoid the prohibition on “cruel and unusual punishment” included in the Eighth Amendment, and minimizing psychological trauma to the executioner(s). In some methods, it is possible to make execution a collective act in which no participant knows for sure that they killed the condemned person, such as loading the rifles of some members of a firing squad with blanks, or having several executioners pull parallel switches to activate the electric chair, but with only one switch wired to complete the circuit.

But older methods of execution are now considered traumatic for the executioners. The firing squad and beheading produce massive bleeding. The electric chair produces the sight and stench of charred flesh. And hanging has the possibility of either slow strangulation (trauma for the condemned) or beheading (trauma for the executioner). Lethal injection has become the method of choice because the condemned appears to lose consciousness quickly and the corpse is in a state comparable to death by natural causes. But lethal injection has become problematic because of the increased difficulty finding the necessary drugs and the difficulty executioners have had in some cases finding a vein to inject the drugs.

This has led to the interest in nitrogen hypoxia as an innovation that would produce minimal trauma to both the condemned and the executioners. The execution of Kenneth Eugene Smith by the State of Alabama last week was the first time this method was tried. Smith was executed by being forced to breathe nitrogen from a standard mask. Eyewitnesses said that he convulsed and gasped for several minutes before he stopped moving and died. Joel Zivot, a professor of anesthesiology and expert on bioethics, described his execution as death by torture.

Smith’s Story

Smith committed a contract killing in 1988 and was tried and sentenced to death in 1989. After his initial conviction was voided on appeal, he was tried a second time and convicted, but the jury recommended a life sentence by a vote of 11-1. A judge overruled the recommendation and sentenced him to death, as was permissible under Alabama law until 2017. However, the ending of judge override was not made retroactive so in Smith’s case it was still in force.

Alabama tried to execute Smith by lethal injection on November 17, 2022, but, in the words of Supreme Court Justice Sonia Sotomayor “Smith’s arms were strapped over his head and he watched as his executioners repeatedly stabbed needles into his hands, arms, and collarbone, trying to access his veins. It took an hour and a half before Alabama called off the execution.” Alabama was still intent on executing Smith and, attempting to avoid the trauma of another botched execution, Smith and the State agreed on nitrogen hypoxia. Smith appealed the second execution attempt to the Supreme Court, which voted 6-3 along “party lines” to deny his appeal. The majority felt no obligation to give Smith reasons for their decision. Sotomayor’s dissent, quoted above, was on the grounds that the State had produced insufficient evidence that this innovation in execution would not constitute cruel and unusual punishment. Justices Kagan and Jackson also wrote in support of Sotomayor’s dissent.

My Judgment

Kenneth Smith spent 35 years in jail, on death row, before he was executed. His story illustrates all the legal complexity, injustice, and perversity of the death penalty as practiced in the US.

Life imprisonment without the chance of parole combines retribution with the possibility of a measure of personal redemption. It reduces the moral and financial cost to society and eliminates the complex litigation and trauma involved in capital cases. Alabama’s innovation of nitrogen hypoxia does not make the death penalty any more palatable. Smith’s story is yet another illustration of why it should be abolished.

Leave a Reply

Your email address will not be published. Required fields are marked *

Subscribe by email

If you are interested in my weekly blog posts about politics and political narrative, as well as updates about my research and teaching, please enter your email address below to receive a free subscription.


Previous Posts