This is The Marshall Project’s Closing Argument newsletter, a weekly deep dive into a key criminal justice issue. Want this delivered to your inbox? Subscribe to future newsletters here.
The state of Alabama had said that when strapped to a gurney and fitted with a mask pumped full of pure nitrogen, Kenneth Smith would be unconscious within seconds during his execution. Proponents of the experimental method said it would be humane, “painless and quick.”
That’s not what played out on Thursday night, according to media witnesses, who described two to four minutes of writhing and thrashing, and a longer period of heavy breathing. “This was the fifth execution that I’ve witnessed in Alabama, and I have never seen such a violent reaction to an execution,” said journalist Lee Hedgepeth. Ultimately, the execution lasted about 22 minutes.
With that macabre scene, Alabama carried out the first known execution by “nitrogen hypoxia,” an untested method that some experts warned was unlikely to work as promised, as our colleague Maurice Chammah reported earlier this week.
Alabama Attorney General Steve Marshall described the execution as a success and said that nothing unexpected happened, including what he describes as Smith’s “involuntary movements.”
Smith was convicted of the stabbing death of Elizabeth Sennett in 1988 in a murder-for-hire plot. He elected nitrogen instead of lethal injection last year, citing a fear of needles that developed after the state attempted, and failed, to put him to death with drugs in 2022. In that instance, executioners tried for more than four hours to insert the necessary IV line, without success. Smith said the experience left him with severe trauma that compounded as he prepared to head to the execution chamber again.
Smith maintained that although he’d chosen nitrogen over lethal injection, that didn’t waive his right to “challenge the new untested method,” reported AL.com. Ultimately, he hoped the state would offer mercy.
That hope wasn’t without precedent. In 2018, Doyle Hamm survived a botched lethal injection similar to what happened to Smith, an ordeal that left Hamm with organ damage, according to his lawyers. Alabama agreed not to attempt to execute him again, and he died from cancer in 2021.
While Alabama was the first state to carry out an execution with nitrogen, Oklahoma was the first to authorize it. In 2015, it did so as a solution to problems sourcing drugs and the specter of botched lethal injections. Last September, Oklahoma Department of Corrections Director Steven Harpe said he would be watching Alabama’s implementation closely, suggesting that it would have some bearing on how Oklahoma moved forward with nitrogen. “We care about that inmate’s experience,” Harpe told The Oklahoman, “I want to make sure that’s as humane as possible for him, for his family, for the victim’s family, for everybody that has to witness that." Harpe’s office did not respond to a request for comment Friday.
At present, Oklahoma can only switch to nitrogen if lethal injection is declared unconstitutional or if the drugs become unavailable, which has happened before. This is of major consequence in a state with two executions scheduled this year and 10 other people awaiting a new execution date, according to the non-profit Death Penalty Information Center.
Nitrogen may be a new execution agent, but the use of gas to carry out death sentences has a long history in the U.S., as Randy Dotinga chronicled for The Washington Post this week.
Several states, including Utah and South Carolina, also have efforts underway to use firing squads, largely a relic of the Civil War, for executions. The case for firing squads is similar to the support for nitrogen: a lack of access to lethal injection drugs and arguments that it may be more humane than other methods. This week, Utah officials sought a death warrant for Ralph Menzies, even though he cannot understand the reasons for his execution due to dementia, according to his lawyers. Menzies, convicted of abducting and murdering a woman in 1988, has chosen death by firing squad.
The states’ search for different execution methods comes at a turbulent moment for the death penalty. Executions remain near a 30-year-low, but after years of decline, there are signs of resurgence, writes Lara Bazelon for Politico. She lays blame on the U.S. Supreme Court, “whose historic role of maintaining guardrails has given way to removing roadblocks” to execution, with the rise of its conservative 6-3 supermajority. It was that same configuration that green-lit Smith’s execution late Thursday.
This week, the justices also agreed to hear the case of Oklahoma death row prisoner Richard Glossip, who was convicted in 1997 of orchestrating the murder of his employer. His appeals have attracted bipartisan political support, including an uncommon admission from the state’s Republican attorney general that Glossip’s conviction was flawed.
Glossip, who has been assigned nine execution dates and eaten three “last meals,” has unsettled the typical partisan split on capital punishment. A number of conservatives in the heavily Republican state say his case has forced them to reconsider their positions.
Similarly, in Missouri, a Republican state legislator who previously supported the death penalty has recently introduced a bill to abolish capital punishment in that state, framing the issue around “restraining government overreach and protecting life,” reports the Missouri Independent. A lawmaker in Ohio has also introduced a bill to eliminate the death penalty.
In the case of one Missouri death row prisoner, there’s another politically unlikely mercy effort in motion. Sixty prison staffers signed a letter this week asking Gov. Mike Parson to commute the sentence of Brian Dorsey, who is scheduled for execution on May 9. “Generally, we believe in the use of capital punishment,” the group wrote, but cited Dorsey’s exemplary conduct in prison in its appeal for mercy.
Earlier this month, the Biden administration announced that it would seek the death penalty for the gunman who killed 10 people in a Buffalo, New York, supermarket in 2022, in a racist attack explicitly targeting Black people. That decision comes after Biden ran on a 2020 platform promising to “eliminate the death penalty.”
Want to keep reading? Here’s more reporting on the death penalty that’s worth your attention.
- Ivan Cantu Is Set to Be Executed. But Did He Get a Fair Trial?
- An Atheist Chaplain, and a Death Row Inmate’s Final Hours
- The Supreme Court Gets a New Opportunity to Oppose Racism in America’s Death Penalty
- Kansas Court Upholds a Man’s Death Sentence, Ruling He Wasn’t Clear About Wanting to Remain Silent
Correction: This article was updated to correct the status of executions scheduled in Oklahoma. Several executions set for 2024 were subsequently delayed and are awaiting a new date.
