Alabama plans to experiment with hypoxia by nitrogen inhalation, an unprecedented method of execution, during the assassination of Kenneth Smith, scheduled for this Thursday, January 25. Experience shows that such experiences in connection with the death penalty often turn into a tragedy and have catastrophic consequences. The planned execution of Kenneth Smith in Alabama could be another tragic example of what happens when states resort to such methods.
And yet, in early January, District Judge R. Austin Huffaker decided to ignore that risk and agree with Alabama. In doing so, the judge ignores the lessons of history and his decision illustrates the Kafkaesque complexity and inhumanity of the law that today regulates the choice of execution methods.
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The first time was catastrophic
Before we take a closer look at R. Austin Huffaker's disturbing ruling, it is worth taking a look at other examples of innovations in killing techniques. Let's start with the decision made in 19th century New York to replace hanging with the electric chair. This decision was made after a long study of various methods of execution and after experts guaranteed that electrocution was a painless and humane way of carrying out the death penalty. Nevertheless, the first use of the electric chair in the execution of William Kemmler on August 6, 1890 was a disaster.
According to the Death Penalty Information Center, as his execution neared, William Kemmler pleaded with his guards: “Don't let them experiment on me any more than necessary.” Despite his pleas, the experience continued. The result was catastrophic: “After an initial seventeen-second administration of a high-voltage electrical current, a doctor pronounced Kemmler dead. Then Kemmler let out a deep groan. […] The execution reports state: “After two minutes, the smell of burning flesh filled the execution room. Two of the witnesses fainted. Many others suffered severe nausea.” […] Newspapers called it a “historic failure” and described the execution as “disgusting, despicable and inhumane.”
Fast forward. Here we are thirty years later, in 1924, during the first use of a gas chamber. This happened in Nevada. State officials there initially tried unsuccessfully to pump hydrogen cyanide into Gee Jon's cell while he slept. When he was finally killed in a specially designed gas chamber, he suffocated in a toxic cloud of poisoned air. Witnesses could smell the gas coming from the room.
When Texas first used lethal injections in 1982, things ended up going wrong again. Prison staff repeatedly failed to insert an IV into Charles Brooks' arm vein. When they finally got there, it took several minutes for the terrified inmate to die.
Keep the machine from killing
While he ignores this liability, Judge Huffaker clearly recognizes that Alabama is entering uncharted territory by planning to use nitrogen to kill Kenneth Smith. His speech betrays a kind of nervous fear of this method of execution.
In the 48 pages of his “Opinion,” R. Austin Huffaker draws the attention of his readers to what he calls the state's “innovative” project. But it does little to assuage Kenneth Smith's legitimate concerns about the significance of this innovation in the execution space or to consider how the jurisprudence on methods of killing should respond to this innovation.
This jurisprudence is clearly aimed at keeping the death machine running, and R. Austin Huffaker is doing his part. In reality, death row inmates like Kenneth Smith never easily won their cases when they challenged an execution method. Never in its entire history has the Supreme Court invalidated a method of killing on constitutional or other grounds.
And in a series of 2008 decisions, the court gave states wide latitude in deciding how to execute convicts. These decisions place the burden on applicants to demonstrate non-compliance with a method – a process that is nearly impossible. To be successful, someone like Kenneth Smith must demonstrate that the killing technique poses a significant risk of what courts call “superimposed pain” and must identify an alternative method of execution that is immediately available.
A death that could be indescribably cruel
It was somewhat difficult to follow Kenneth Smith's position on nitrogen hypoxia. He initially said he would prefer to be killed by inhaling the gas rather than lethal injection, a preference the state ignored when it unsuccessfully tried to execute him in November 2022. In the lawsuit that R. Austin Huffaker has just come to when Kenneth Smith gave an answer, he is not disputing nitrogen hypoxia per se, but rather details of the protocol that Alabama says it plans to follow, particularly regarding the manner in which how the gas is administered and the mask covers his face.
As the numerous botched lethal injections in the United States have shown, this kind of detail makes all the difference in the world in someone's execution. It's important to make sure everything goes according to the rules so that killings don't turn into a frightening spectacle.
Judge R. Austin Huffaker notes that Kenneth Smith argues, among other things, that the Alabama protocol “does not provide instructions about what type of mask to use; how, when and by whom it is placed, adjusted and reviewed; on what training […] will receive the team that will execute it; about how [le personnel pénitentiaire] performs a final inspection to determine whether the mask is correctly positioned; and what happens if the mask moves or is moved during execution.
Kenneth Smith argues that lack of attention to these details “could lead to the penetration of oxygen into the mask and therefore increase the time to loss of consciousness and the risk of terrible consequences such as vegetative state, stroke, etc. Painful feeling of suffocation. Any of these events, if they occurred, would make his death indescribably cruel.
A mistake that is both moral and legal
As is the case in many cases where methods of execution are questioned, Judge Huffaker presided over a panel of diverse experts, including those commissioned by Kenneth Smith, who detailed everything involved in the execution under the conditions applicable in the territory protocol could go wrong. Not surprisingly, state officials came to exactly the opposite conclusions.
Despite these contradictory representations, the judge ruled that “the continuous introduction of pure nitrogen will lead to nitrogen hypoxia and that nitrogen hypoxia will eventually lead to death.” This conclusion, of course, raises the questions raised by Kenneth Smith, which are not about the properties of nitrogen per se but rather the way the gas is administered.
R. Austin Huffaker held that there was simply “insufficient evidence to conclude with reasonable certainty or probability that execution by nitrogen hypoxia under the protocol would be more likely than not to result in Kenneth Smith's death.” suffer additional suffering or require a longer dying process.” . He then acknowledged, with shocking calmness, that something could indeed go wrong, but, in his words, “only if a chain of improbable events occurs.”
After saying this, R. Austin Huffaker returned to the question of innovation and acknowledged that the Alabama execution project amounted to a kind of experiment on a human being. Still, he says, “the federal courts are no stranger to new methods of execution” and a novelty in methods cannot and should not change “the burden.” [incombant à Kenneth Smith] to show that the method involves an unacceptable risk of suffering.
R. Austin Huffaker's refusal to demand greater accountability from a state that wants to use a new and controversial method of killing is, in my opinion, both a moral and legal mistake. Why should a person sentenced to death not enjoy the same legal protection when the state seeks to innovate or experiment as if they were the subject of an innovation or experiment in the context of their medical care? It seems to me that this should be the case.
If Alabama intends to follow in the footsteps of New York, Nevada and Texas and adopt a new method of execution, the state, not Kenneth Smith, should be forced to show that it does not carry out cruel killings. And in this case he didn't.