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 11th 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.