Alabama will allow America’s first nitrogen gas execution of a convicted murderer, Kenneth Eugene Smith, even as debate becomes heated regarding the constitutionality of the new, untested method of capital punishment. 

Administering nitrogen hypoxia to Smith on January 25 could violate the UN convention against torture and the Constitution’s ban on “cruel and unusual punishment.” Smith’s lawyers argued that he was a “test subject” for the gassing protocol. Yet on Wednesday, a U.S. District Judge, R. Austin Huffaker, rejected their request for an injunction to stop his scheduled execution. The case could soon reach the Supreme Court.

While nitrogen gas inhalation has been hailed as a “humane” method of punishment, doctors and human rights advocates fear just because it looks painless, that doesn’t mean it is. Look no further for doubts about the lawfulness of nitrogen gas executions, otherwise called nitrogen hypoxia, than the man who envisioned them: an engineering school dropout turned technology consultant and then screenwriter, Stuart Creque.

In a 1995 National Review article, Mr. Creque argued that inhaling the odorless, invisible gas would merely “put people to sleep” by causing unconsciousness within a few breaths and oxygen deprivation that eventually leads to death.  

Mr. Creque’s premise of painless execution, like his latest occupational calling, may be fiction, though. In reality, the procedure could cause Smith to have violent seizures before he dies — perhaps no less painful than lethal injections, which states have struggled to conduct due to a shortage of the necessary chemicals from European pharmaceutical companies. 

The promise of “sleep” as though under anesthesia “is particularly galling,” as it conflates a medical act with cruelty, an anesthesiologist, Joel Zivot, tells the Sun. He co-authored a complaint regarding Smith to the United Nations alongside a professor of human rights at Birmingham City University, Jon Yorke. Four UN human rights special rapporteurs subsequently warned last week that administering nitrogen gas to Smith could “result in a painful and humiliating death.”

Smith was one of two men who were each paid to kill Elizabeth Sennett on behalf of her husband, Reverend Charles Sennett, who wanted to collect on insurance to repay his debts. The Smith death sentence was overturned on appeal in 1992, but he was retried and convicted again in 1996. He has claimed innocence, arguing that it was the other man who stabbed Sennett. 

A trilogy of Supreme Court cases have affirmed that capital punishment abides by the Eighth Amendment’s “cruel and unusual punishments” clause. In the 2008 Baze v. Rees decision, Chief Justice Roberts opined that the high court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishments,” so long as such punishment does not involve “unnecessary cruelty.”

The Supreme Court has created an “impossible standard,” Mr. Yorke argues, by placing the burden upon the inmate to offer an alternative execution method should the state’s current one be deemed unconstitutional. “How,” he asks, “can an inmate create an execution method from a cell?”

Proceeding with Smith’s capital punishment is a violation of due process protected by the Constitution and international human rights law, Mr. Yorke tells the Sun. “Simply put,” he says, “the American judicial system does not meaningfully allow for a review of someone’s execution,” which would ensure that the process is fair and balanced.

“The death penalty is a quandary, it’s a paradox, it’s quixotic — isn’t it?” Mr. Yorke says. “The Department of Corrections, in creating these new execution methods, is trying to resolve the problem of the nastiness of killing.” 

Proponents of capital punishment “want to create a political narrative which enables them to continue to kill,” Mr. Yorke says. “That desire has now produced a brutalizing effect on the execution methods.” While political conservatives tend to support the punishment, Dr. Zivot says that an originalist reading of the Constitution impels objections to it and that those who argue for government incompetence should not grant it such power to administer so-called justice. 

Proponents, though, say that the Fifth and 14th Amendments approve of the death penalty: A person may not be “deprived of life, liberty or property without due process of law.”

As a former deputy assistant secretary of defense for detainee affairs, Charles Stimson, writes for the Heritage Foundation, “the death penalty serves three legitimate penological objectives: general deterrence, specific deterrence, and retribution.” Simply put, it stops the convict from killing other people while discouraging others from committing murder. 

Among global democracies, America is an outlier in its use of capital punishment. In 2022, there were 18 confirmed executions in America, outnumbered only by the regimes of Communist China, Iran, Saudi Arabia, and Egypt. The trend continued in 2023, when America was the only G7 country to use capital punishment.

“Many European countries have abolished the death penalty,” Mr. Stimson writes. “But they are less democratic than we are, and its lawmakers are less accountable to the people in their countries.” 

Most Americans favor using the death penalty, which is allowed in  27 states. Sixty-four percent say that its use on people convicted of murder is “morally justified,” according to 2021 Pew Research data. Concerns emerge over how exactly it is administered, with nearly 80 percent pointing to “some risk” that an innocent person will be put to death and only 21 percent saying there are “adequate safeguards” to ward against that possibility.

Last September, Mr. Creque defended his creation, nitrogen anoxia, in a Wall Street Journal article. He called the process a “humane method of execution” that “will inflict no physical pain” upon recipients, and “a murderer such as Mr. Smith will merely forfeit the balance of his natural life span.” Although Dr. Zivot, a physician, prefers to focus on the technical issues of the gassing protocol, his moral revulsion became apparent during a phone call with the Sun.

“There’s nothing in the Constitution that uses the word ‘humane,’” Dr. Zivot says. That description speaks to the quality of character of Smith, he says, which should be independent of the lawfulness of his punishment. “This idea of humaneness is just a distraction away from what the law requires, which is that an execution not be cruel.” 

Still, he adds, “the absence of cruelty is not the presence of humaneness.”