Nitrogen Gas Leak Fears Grow Before Kenneth Smith's Execution

Alabama is set to carry out the nation's first execution via nitrogen hypoxia this week, but critics are warning of the dangers to those in and outside the execution chamber if the gas leaks.

Kenneth Eugene Smith, 58, is scheduled to be executed on Thursday. He was one of two men convicted in the 1988 murder-for-hire slaying of Elizabeth Sennett in northwestern Alabama.

Smith's attorneys are asking courts to block the execution, arguing that Alabama's bid to execute Smith after botching an earlier attempt using lethal injection violates the United States Constitution's ban on cruel and unusual punishment.

A federal judge rejected Smith's request to stop the execution earlier this month, and the case will most likely end up before the U.S. Supreme Court, which has been unwilling to stop executions at the last minute in recent years.

According to Alabama's protocol, a face mask will be placed over Smith's nose and mouth to replace breathable air with pure nitrogen, depriving him of oxygen and causing him to die. The protocol says the nitrogen gas would be administered for 15 minutes or "five minutes following a flatline indication on the EKG, whichever is longer."

Alabama Solicitor General Edmund LaCour told federal appeals court judges on Friday that nitrogen hypoxia is "the most painless and humane method of execution known to man." In court filings, the state has said it would "cause unconsciousness within seconds and cause death within minutes."

But experts say what will happen after the gas is administered to Smith remains to be seen.

Smith's spiritual advisor, the Reverend Jeff Hood, is resolved to be in the execution chamber when Smith is put to death, despite fearing that his life could be in danger in the event of a leak. He has been speaking with Smith daily since November.

'Dangerous'

"I'm going to be a matter of feet from Kenny, and we have fought very hard to secure that right, and we certainly aren't going to give it up just because there's a new form of execution," Hood told Newsweek.

"If there is a leak, there is no doubt that it will be dangerous, if not deadly, for everybody in the room."

Alabama prison officials have required Hood to sign a waiver to be in the execution chamber and commit to staying three feet away from Smith.

To somewhat minimize his risks, Hood sent a letter to the Alabama Department of Corrections on January 15—which Newsweek reviewed—demanding certain safeguards to be in place during the execution. They include the presence of oxygen monitoring meters in the execution chamber, the presence of independent paramedics outside the execution chamber and the presence of ambulances at the closest possible exit.

Hood said he has received no response about whether any of his demands would be met. Newsweek reached out to the Alabama Department of Corrections for comment through its website.

"It's almost as if they want to pressure me not to go in," Hood said. "They want to leave so much uncertainty that I will be too afraid to go in, and I can assure you, that's not going to happen."

Hood said experts have advised him not to go into the execution chamber because of the risks.

"For me, it is too big of a risk with regards to my faith to not do it," he said. "I'm trying not to be scared, but it's an incredibly dangerous moment...[I'm] trying to be there for Kenny in the midst of having to worry about all these things for myself and my family."

In an op-ed published on Sunday on AL.com, Hood called on Alabama Governor Kay Ivey to join him in the execution chamber.

"Let's see how sure they are that this is safe," he said. Newsweek reached out to the governor's office for comment via email.

Dr. Joel Zivot, a professor of anesthesiology at Emory University and expert on lethal injections, said the risks to those in the execution chamber and witness room are unknown.

"We don't know exactly how much nitrogen gas will be flowing," he told Newsweek. "We do know that nitrogen gas is odorless and colorless and non-noxious, so there'd be no way of knowing where the nitrogen was leaking."

The idea that an execution should put anybody in the vicinity at risk is "unprecedented" and "unlawful," Zivot said. It "speaks to a very poorly done, as per usual, Alabama execution plan."

A leak of nitrogen gas could also prolong the execution. "There's a chance [Smith] may not die, or he may die slowly," Zivot said.

Zivot's concerns prompted him to co-author a United Nations complaint that led to experts appointed by the U.N. Human Rights Council to accuse Alabama of rushing ahead with an experimental method that would likely violate the prohibition on torture.

'A horror show'

Smith is worried that the execution on Thursday—like the previous attempt to kill him in November 2022—could go wrong.

"I am worried that we have told Alabama that these risks could happen — will happen — just like we warned them last year," he said in written responses to The New York Times. "And they will do nothing to prevent these dangers from happening."

Hood also said that Smith has been regularly vomiting as his execution nears.

"Kenny is just so sick, he's throwing up, and he can't even talk on the phone," he said. "I think that we are going to witness a horror show."

Zivot said that creates the risk that Smith could choke to death on his vomit. "Imagine lying on your back and vomiting into a mask and what that would be like, so you could choke, not be able to breathe," he said.

He said if Smith's symptoms persist, he may be too sick to be executed. "If he's sick, and he can't do this, then [Alabama] should not go ahead with this right now," he said. "They should make sure that the execution is lawful."

Hood said, as a death penalty opponent, Smith's execution presents a "strange" conundrum for him.

"I have no doubt that if this is successful in Alabama, we're going to see this all over the country," he said. "If it doesn't go well, or if it isn't successful, then there's very real risk to me...the same for Kenny, if it's not successful, he's going to experience an unbelievable amount of pain, but I think it could save other guys who are behind him."

Mississippi and Oklahoma have authorized nitrogen hypoxia as an execution method but have never used it to carry out a death sentence, and legislators in other states having difficulty obtaining lethal injection drugs could move to approve the method.

Although it seems increasingly likely that Smith's execution will go ahead, Hood said there is still some hope.

He joined demonstrators gathered outside the Alabama Capitol in Montgomery on Tuesday, urging the governor to halt the execution. They will also gather for vigils outside the prison in Atmore, as well as in Montgomery, Birmingham and other cities on Thursday.