Consider This from NPR - Alabama To Use Untested Execution Method This Week

Episode Date: January 22, 2024

Alabama has already tried to execute Kenneth Smith once. On the night of November 17, 2022, he was scheduled to be put to death by lethal injection, but workers couldn't find a vein to place an IV. They tried for an hour, during which, he was jabbed with needles in his arms, hands and collar bones. Smith, one of only two living people in the U.S. to have survived an execution attempt, faces death again. On Thursday, the state of Alabama plans to execute him using a method it calls nitrogen hypoxia. It has never been tested in the U.S.NPR's Ari Shapiro talks to investigative correspondent Chiara Eisner about Smith's execution, and what led Alabama to use a new and untested execution method.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

On November 17, 2022, the state of Alabama tried to kill Kenneth Smith. I was strapped down, couldn't catch my breath. I was shaking like a leaf. Smith was sentenced to death in 1996 for his role in the murder-for-hire killing of Elizabeth Sennett. On that night in 2022, he was meant to be executed by lethal injection, but workers couldn't find a vein to place an IV. Over the course of an hour, Smith says he was jabbed with needles in his arms, hands, and collarbone. I was absolutely alone in a room full of people, and not one of them tried to help me at all, and I was crying out for help. Smith's attorneys called it cruel and unusual punishment.

Alabama's governor ordered a review of the state's lethal injection protocol. Meanwhile, State Attorney General Steve Marshall blamed Smith for running out the clock with what he called frivolous claims in court. It was a travesty of justice not for Kenny Smith, the twice convicted murderer who was scheduled to be executed that day, but it was for Elizabeth Senn Senate and for the members of her family. Now, Kenneth Smith, one of only two people alive who've survived execution attempts in this country, faces death again. On Thursday, the state of Alabama plans to execute him using a different method, one that's never been used in the U.S. before. As the date approached, Smith called NPR investigative

reporter Kiara Eisner. On a scratchy line, with a 15-minute time limit, he talked to her about what happened and what he's worried about. Everybody is telling me that I'm going to suffer. So I'm absolutely terrified. So Alabama has said that they're doing things differently this time. You know, they did this whole review of the process last year. Do you feel that they're doing things differently this time. You know, they did this whole review of the process last year. Do you feel like they're doing things differently than last time? Are they telling you what's going on? Oh, no, they're telling me nothing.

I won't know if things are different or not until I actually get around there. Yeah, I don't know. Thank you for using. Secure us. Goodbye. Consider this. Alabama may try out an untested execution method this week, one that NPR's investigative reporting showed could even put workers and witnesses at risk. From NPR, I'm Ari Shapiro. It's Monday, January 22nd. It's Consider This from NPR. The method Alabama is planning to use to execute Kenneth Smith is one the state calls nitrogen hypoxia. Alabama has never used it before. In fact, it's never been used in the U.S. to put an inmate to death.

Kiara Eisner from NPR's investigations team has been reporting on the case and is here to talk with us about it. Hi, Kiara. Hi, Ari. Kenneth Smith's failed execution in 2022 is not the only lethal injection that did not go according to plan for Alabama. What's the state's recent track record? In 2022, the state had a string of back-to-back failures when they were trying to execute people. In July, Alabama's execution team took hours to set the intravenous lines for the execution of a man named Joe Nathan James. James was ultimately executed, but his family has sued the state for what is thought to be one of the longest executions ever. Just two months later after that, the state stopped the execution of a man named Alan Miller because workers couldn't set that line in time either.

And then in November, the state tried and failed to execute Kenneth Smith, again because the workers weren't able to set the lines for the lethal injection. Smith and Miller are the only two people alive today who've survived an execution attempt, and they're both from Alabama. And now the state is moving forward with this new method of execution. How does this form of execution that the state calls nitrogen hypoxia work? So there's naturally more nitrogen in the air than oxygen, and when you don't breathe in that oxygen, people suffocate and die. So the idea here is that they're going to administer pure nitrogen gas, and then that person will lose access to the oxygen and die of oxygen starvation. I should say that this is not nitrous oxide gas or laughing

gas. This is not going to make Kenneth Smith high before he dies. Well, his lawyers are fighting this decision in court. So tell us what their argument is. They've brought a number of different arguments. One of the more recent ones is that this attempt to put Kenneth Smith to death a second time is going to violate the Alabama Constitution, which protects against cruel or unusual punishment. They say that trying this again after they've already tried once is putting Smith through torture, and torture is not allowed by the state. Medical experts also have concerns about this procedure. What are their worries? Well, I should say that doctors don't consider this to be a medical procedure.

That's because medicine is about saving lives, not taking lives, and in this case, Smith does not want to die. The state of Alabama is executing him against his will. And doctors don't believe that that is medicine. Some don't even want to discuss the issue of nitrogen gas because they think that even that would be against their profession. I reached out to the American Medical Association to see if they could connect me with a doctor to talk to me about this, and they declined, saying that they were, quote, unable to ask doctors to violate professional ethics by imparting medical knowledge, even during a radio interview, that could aid or contribute to the ability of others to carry out capital punishment. So just the fact that there's an execution going on, that's already a concern for many doctors. But some have also suggested

that using nitrogen here could lead to the person vomiting and seizing before they die, maybe even having a stroke. And some doctors say that that could lead to a painful and complicated death. And what about the other people in the room who are present for the execution? Well, I obtained a document that shows that Alabama asked Smith's spiritual advisor to sign. Alabama knew there was a risk to him just from being in the room with Smith and being close to him. That's because the mask could slip and gas could escape. And even if the mask didn't slip, this forum said, there could be gas in the area above his head. How does the state of Alabama respond to these

arguments? After we published our story, the spiritual advisor, Jeff Hood, sued the state, saying his religious liberty was violated because Alabama was asking him to stay three feet away from Smith, and he needed to be closer than that to anoint Smith and touch him to be a good spiritual advisor. Alabama then changed their protocol a bit and said they'd allow Hood to do all of his spiritual activities before the gas was administered to Smith. It's also important to note that the state has been turning down all of Smith's appeals for a while. At first, Smith's lawyers asked that he be executed by nitrogen gas and never by lethal injection again. The state did agree to that, and that's why we're here

with him about to be executed by nitrogen gas on Thursday. But then his lawyers argued that it was actually an Eighth Amendment violation. That means it was cruel or unusual punishment to put Smith to death a second time by any means. That appeal was turned down two weeks ago. Well, if this execution does go forward as scheduled, walk us through the play-by-play of what is actually going to happen. Yes. So Alabama has released a redacted protocol that does give a superficial idea of what might happen this week. There's still a lot we don't know, but we know that the warden of the prison will meet with Smith to go over the schedule. We know the warden would also meet with a spiritual advisor. We know the execution team will be meeting at least twice to rehearse and that the warden is

supposed to be double checking the nitrogen gas canisters and those oxygen gas managers in the room. We also know that at 6 p.m. on Thursday, the execution is scheduled to start. It could go longer than that. And at some point, someone will put a mask on Smith after Jeff Hood has given him his last rights and stepped back those three feet. We don't know too much else about what's going to happen. How unusual is all of this compared to what happens in other states when people are executed? It's going to be very different because no state has executed anyone with nitrogen gas before. Gas has been used to execute people in other states like Nevada, California, and Colorado, but those states used gas chambers and cyanide gas.

And people were left inside the chamber to die by themselves as people outside watched. Here, a major difference is the administration of the gas with a mask, and the fact that other people are going to be in the same room. Just to ask a very basic question, why is Alabama trying something that's never been used in the U.S. to execute people before? Why do they even need new execution techniques? Well, Alabama clearly struggled to administer lethal injection. That's the first answer. They made major mistakes three times in a row in 2022 in virtually the same way. Workers weren't able to quickly place that line.

And why were they not able to do it? It's hard to know for sure, especially with all of the secrecy that Alabama has maintained about those failings. But often the people working on executions are not highly trained medical professionals. Highly trained medical professionals do not become correctional officers generally. And execution teams are mostly comprised of correctional officers. The other thing to consider is that a lot of states have struggled even to get lethal injection drugs because all major pharmaceutical companies have publicly stated that they don't want their drugs to be used to kill people in executions.

That's NPR's Kiara Eisner, who is heading to Alabama this week to report on the execution. Thanks, Kiara. Thank you, Ari. This episode was produced by Connor Donovan and Noah Caldwell. It was edited by Barry Hardiman and Courtney Dorning. Our executive producer is Sammy Yenigan. It's Consider This from NPR. I'm Ari Shapiro.