ACLU Statement on Alabama Execution of Kenneth Smith by Nitrogen Gas

ATMORE, Ala. — The Alabama Department of Corrections executed Kenneth Smith late yesterday evening by nitrogen hypoxia, the first time in U.S. history that a state has used nitrogen gas to execute a person. Despite state claims that it would be a painless death, witnesses reported Mr. Smith writhed and gasped for minutes until he slowly suffocated.

Although a jury voted 11-1 to sentence Mr. Smith to life in prison for his role in a 1988 killing, the sentencing judge overrode the jury’s decision and imposed the death penalty anyway. This type of judicial override is no longer permitted in Alabama or in any other state.

The Alabama Department of Corrections previously attempted to execute Mr. Smith by lethal injection, but called off the execution after failing to find a suitable vein.

Mr. Smith petitioned the Supreme Court to block his execution, but in a 6-3 vote, the court denied his request. In her dissent, Justice Sotomayor said Alabama selected Mr. Smith as a “guinea pig.”

Yasmin Cader, deputy legal director at the American Civil Liberties Union and the director of the Trone Center for Justice and Equality, had the following reaction:

“After a botched attempt to execute him by lethal injection in 2022, state officials chose to kill Mr. Smith by suffocating him to death with nitrogen gas, a method United Nations experts warned could constitute torture in violation of international treaties the U.S. has ratified. Mr. Smith should have never been killed, let alone in such a gruesome manner.

“Alabama’s execution of Kenneth Smith in a horrific, reckless, and untested manner is a profound illustration of the barbaric practice of capital punishment.

“It’s past time for our country to put an end to the death penalty instead of inventing new and more heinous ways of carrying it out.”