Alabama reveals new details of its plan to execute prisoners with nitrogen gas
"I was able to breathe comfortably," said top ADOC official after wearing execution mask
On Monday, the Alabama Department of Corrections revealed details of its plan to carry out the first execution in America using nitrogen hypoxia. The method, which was adopted by Alabama legislators in 2018 and has never been tested on humans, will essentially suffocate prisoners by replacing oxygen with nitrogen gas. The state is planning to execute Kenneth Smith, who already survived a lethal injection attempt last year, this way on January 25, 2024.
Since announcing its plans to use the method, ADOC has remained tight-lipped about implementation aside from stating in court that the system will involve a mask. Smith filed a lawsuit over the constitutionality of ADOC’s plans last month, alleging that they lack “critical safeguards” and make him susceptible to “severe and permanent injuries short of death such as persistent vegetative state, stroke, or the painful sensation of suffocation.” His lawyers pointed out that the protocol released in August by ADOC does not include information about the fit of the mask, how it will vent carbon dioxide, and the purity of the gas, all components that could lead to problems with the execution.
Now, as part of the lawsuit, the department’s regional director, Cynthia Stewart, has disclosed previously unknown details about those elements. Stewart’s assurances that Smith will not be subjected to another painful execution attempt, however, appear to be largely unscientific and based upon personal observations.
In an affidavit, Stewart wrote that the unnamed mask is “commonly used” for industrial purposes and features a five-point strapping system that guarantees a secure fit. It “is designed to fit and does fit a broad range of wearers,” wrote Stewart.
She said she has observed the mask in conditions that closely replicate execution conditions. In ADOC’s case, that means people have worn the mask while “breathing air” flowed into it, not nitrogen. “The wearer has appeared comfortable and has been able to speak audibly to others present and be understood. Based on my observations, the strapping system creates a tight seal,” wrote the regional director. It was Stewart’s impression that people will be able to speak audibly without disrupting the mask’s position (notable because the protocol calls for prisoners to wear the mask while they say their final words) and it would be “highly unlikely and difficult” for prisoners to dislodge it with their own hands.
Smith’s lawyers raised concerns about their client becoming inundated with carbon dioxide trapped within the mask and subsequently experiencing painful feelings associated with suffocation. According to Stewart, that won’t be an issue because the mask features valves to vent carbon dioxide. In fact, Stewart said she has observed multiple people wear the mask for an unspecified period of time and none of them reported problems with breathing. Stewart herself has worn the mask and was “able to breathe comfortably.” Again, mask wearers were breathing air, not nitrogen for these tests, a crucial distinction that results in very different conditions. Prisoners who will wear the mask for an execution are being executed, not simply breathing in air.
Finally, Stewart discussed the nitrogen gas that will be used for executions. ADOC has refused to reveal the source of the gas, citing, in part, our reporting as evidence that people won’t work with the department if their association with executions is made public (affidavit below). In 2019, Airgas, the company that’s contracted to supply gas to the state, told me “supplying nitrogen for the purpose of human execution is not consistent with our company values” and it would not sell for executions. Nevertheless, Alabama was able to find a supplier. To quash questions over the purity of the gas, Stewart attached a certificate of analysis that found the gas is indeed 100 percent nitrogen. Importantly, that analysis was reported by the supplier and was not the result of an independent inquiry into the purity of the nitrogen.
Though Stewart’s affidavit offers basic new details about the structure of the mask that will be used, it does not provide new scientific analysis or information about the expertise the department relied on to set up the nitrogen system.
It provides few details to assuage concerns that Alabama, a state that has had problems carrying out executions, will struggle to carry out Smith’s sentence with nitrogen hypoxia.
Notably, even an organization that specializes in helping people die by gas is doubtful of the state’s ability to carry out executions by nitrogen. In a November court filing, the director of assisted suicide organization Exit International, wrote that “It is difficult to see how an effective air-seal could be initially established, let alone maintained, without Mr. Smith’s participation and cooperation.” The director, a medical doctor, noted that very few details about Alabama’s execution protocol have been publicly released. He concluded “there is good reason to be concerned about the planned procedure,” and that “there is a significant possibility that Mr. Smith will be subject to incomplete cerebral hypoxia” and experience permanent brain damage.