Alabama Attorney General Seeks Execution with Unprecedented, Untested Method Using Nitrogen Hypoxia

On August 25, 2023, Alabama Attorney General Steve Marshall asked the state Supreme Court to set a date for Kenneth Smith to be exe­cut­ed using nitro­gen hypox­ia, a method that has nev­er been used in any state. The deci­sion to use this method comes after Alabama botched sev­er­al exe­cu­tions. Since 2018, when Alabama ini­tial­ly autho­rized the use of nitro­gen hypox­ia in cap­i­tal pun­ish­ment, the state has been work­ing to estab­lish a pro­to­col for exe­cu­tions using this method. Alabama ini­tial­ly autho­rized nitro­gen hypox­ia amidst a short­age of lethal injec­tion drugs. Oklahoma and Mississippi also have statutes autho­riz­ing the use of nitro­gen hypox­ia, but Alabama would be the first state to attempt to use this method.

Execution by nitro­gen hypox­ia results in death by suf­fo­ca­tion because the indi­vid­ual breathes in only nitro­gen, depriv­ing the brain and body of oxy­gen. While nitro­gen accounts for near­ly 80% of the air humans inhale, when inhaled on its own, nitro­gen is dead­ly. Those advo­cat­ing for the use of nitro­gen hypox­ia say that the prac­tice is pain­less, but oppo­nents argue this can­not be guar­an­teed as the method is untested. 

Alabama attempt­ed to exe­cute Mr. Smith in November 2022, but aban­doned the effort after spend­ing sev­er­al hours unsuc­cess­ful­ly attempt­ing to set an IV line for the lethal injec­tion drugs. Mr. Smith’s exe­cu­tion was pre­vi­ous­ly stayed by the United States Court of Appeals for the 11^th Circuit, but the U.S. Supreme Court vacat­ed the low­er court’s stay. The set­ting of IV lines was an issue in all 3 exe­cu­tions attempt­ed in Alabama in 2022, includ­ing the botched exe­cu­tion of Joe James and the attempt­ed exe­cu­tion of Alan Miller. An inves­ti­ga­tion ordered by Governor Kay Ivey was com­plet­ed in just 4 months and crit­ics allege that it did not result in any mean­ing­ful changes to the execution protocol.

Since 2018, Alabama has been the only state to aban­don an in-progress exe­cu­tion. The last exe­cu­tion stopped after fail­ure to set IV lines was that of Alva Campbell in Ohio in 2017. Ohio cor­rec­tions employ­ees also had issues set­ting an IV line for Ronnell Broom’s 2009 execution.