A thousand US dollars: That’s why the then 22-year-old Kenneth Eugene Smith got involved in a contract killing in March 1988. A short time later, the client’s wife was dead, murdered in her home on a country road in remote northern Alabama. Smith and two accomplices were caught – one received a life sentence, the other died by lethal injection in 2010. Smith was also sentenced to death. Alabama is one of the US states where murderers are still threatened with execution.
But never before has a person been executed there or in the rest of the USA – probably even worldwide – using so-called nitrogen hypoxia. In the untested procedure, a person is given nitrogen via a face mask. The result is death from lack of oxygen. Smith, now 58, is expected to die this way within a 30-hour period from Thursday to Friday. In 2022, his execution with lethal injection failed.
Human rights experts warn that it could be torture. According to the UN, there is a lack of scientific evidence that inhalation of pure nitrogen does not cause serious suffering. “An experiment is being carried out on a human being here,” warns Amnesty International in a statement.
Smith used the 15 minutes he was allowed to make a phone call to the Guardian, the British newspaper reported on Sunday. He was plagued by nightmares about having to return to the execution chamber. “I’m not ready for that,” he said. “No way. I’m just not ready.” Court documents show that Smith was diagnosed with post-traumatic stress disorder after the first execution attempt. Prison staff were unable to insert the cannula into his arm. After several hours of lying strapped to an execution table, he was returned to his cell.
“I don’t know how we can distinguish what happened to him from a mock execution,” says Robin Maher, lawyer and executive director of the Death Penalty Information Center. The organization maintains a comprehensive database on the death penalty in the USA and explicitly does not take a political stand. Many passages in the execution protocol were blacked out, says Maher. “What happens if the gas leaks out of the mask because it’s not tight enough?” she lists some of the unanswered questions. “Where does the gas come from? What happens in an emergency?” It’s not just in Alabama that concrete details like these are communicated rather sparsely. “That’s problematic in a democracy.” The exact procedure is unclear. It is also unclear whether Smith should be anesthetized in advance.
The death penalty still exists in the United States today in the military, at the federal level and in 27 states, although in California, for example, it is de facto no longer carried out. The approved methods vary. Hypoxia is also permitted in Oklahoma and Mississippi. There is a gas chamber in Arizona, among other places. Idaho did not reintroduce firing squads until 2023. However, these methods are only used very rarely. People are more likely to be executed in the electric chair, primarily in South Carolina. By far the most frequently used method in other states – especially Texas – is execution by lethal injection. Since 1976, 1,402 of a total of 1,582 executions have been carried out this way.
Many pharmaceutical companies block the use of their medications or the equipment required for the injection. A legal dispute has also been raging for years over the question of the extent to which the US Food and Drug Administration should be involved. However, states can avoid bottlenecks and licensing issues by purchasing the toxic cocktails from so-called compounding pharmacies. These are not regulated at the federal level – and have made headlines in the past due to a lack of hygiene. In addition, because the US Association of Doctors and Nursing Personnel (AMA) prohibits its approximately 270,000 members from taking part in executions, they are sometimes not carried out by adequately trained specialist personnel.
Horrifying eyewitness and autopsy reports show what this means for death row inmates. Executions repeatedly fail or drag on for hours. Smith’s case was one of three in Alabama in 2022.
His lawyers have so far tried in vain to stop the second execution date. In addition to an ongoing appeal in district court, they are simultaneously arguing the Eighth Amendment before the US Supreme Court. This prohibits “cruel and unusual punishments”. The lawyers write that the failed execution is already included. It is completely unclear whether the Supreme Court will take up their request. The Republican governor of Alabama, Kay Ivey, could stop the execution by decree. But observers consider that to be unlikely.
A slim majority in the US continues to support the death penalty for murderers – including the son of the woman whose murder Smith was involved in. “When you commit a crime, you know you have to pay for it,” he told broadcaster WAAY in 2022. “My sister-in-law is a nurse. We’ll bring her with us next time. She’ll find it (the vein).”
But opinions like these are becoming increasingly rare. While there are no reliable figures for miscarriages of justice, awareness of them is growing among the US public. Advances in forensic science – such as DNA analysis – as well as revelations about withheld evidence and false statements are leading to doubts as to whether some of the people already executed were actually guilty.
Discrimination in the US criminal justice system is another issue. When it comes to a conviction, it is not just the crime that plays a role, but also the quality of the legal advice. “The people who are sentenced to death in this country are the poorest of the poor,” emphasizes Maher from the DPIC. “They can’t afford good lawyers.” Numerous studies also show that murderers of white people are more likely to be sentenced to death than those who murder black people. At the same time, black convicts tend to receive more severe sentences than white people for the same crimes.
In 2023, 24 death sentences were carried out and 21 were pronounced in the USA. Ten years ago there were significantly more. 2,331 people across the country are awaiting execution, as Kenneth Eugene Smith has often been for decades. When he was convicted in 1996, the jury actually recommended a life sentence, but the judge overruled it. This would no longer be possible today: Alabama was the last US state to abolish the so-called Judicial Override law in 2017.
