United States: UN experts alarmed at prospect of first-ever untested execution by nitrogen hypoxia in Alabama

GENEVA (3 January 2024) – UN experts* today expressed alarm over the imminent execution of Kenneth Eugene Smith in the United States by nitrogen hypoxia – an untested method of execution which may subject him to cruel, inhuman or degrading treatment or even torture.

“This will be the first attempt at nitrogen hypoxia execution,” the experts said, citing concerns about the possibility of grave suffering which execution by pure nitrogen inhalation may cause. They noted that there was no scientific evidence to prove otherwise.

Smith was convicted of murder for hire in 1988 and sentenced to life without parole by a near unanimous jury vote of 11-1. However, the sentencing judge overrode the jury recommendation and sentenced him to death. 

Kenneth Smith, who has been on death row for over three decades, is scheduled to be executed on January 25, 2024, in the US State of Alabama. Authorities in Alabama previously attempted to execute Smith in November 2022 using lethal injection, but the attempt failed.

The recently approved ‘Executions’ Protocol’ of the State of Alabama, allows for the use of nitrogen gas asphyxiation. “We are concerned that nitrogen hypoxia would result in a painful and humiliating death,” the experts said. They warned that experimental executions by gas asphyxiation – such as nitrogen hypoxia – will likely violate the prohibition on torture and other cruel, inhuman or degrading punishment.

They expressed regret about the continuation of executions in the US, which contradict global trends towards the abolition of the death penalty. Botched executions, lack of transparency of execution protocols
and the use of untested drugs to execute prisoners in the US have continuously drawn the attention of the UN mechanisms, including special procedures.

The experts noted that punishments that cause severe pain or suffering, beyond harms inherent in lawful sanctions likely violate the Convention against Torture  to which the United States is a party, and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment that guarantees that no detainee shall be subjected to medical or scientific experimentation which may be detrimental to his health.

They appealed to Federal and State authorities in the United States and the State of Alabama to halt the execution of Kenneth Smith and any others scheduled to be executed in this manner, pending review of the execution protocol.