Locked up in an Alabama prison, Kenneth Smith has been waiting to die for more than 30 years. Sentenced to the death penalty in 1996 for the murder of a woman, whom he had been charged with killing in 1988 by her unfaithful husband, this 58-year-old American should have been executed in November 2022. But his death by injection lethal failed: the executioners failed to find the appropriate vein to administer the fatal substance. The execution authorization has expired, and another date has been set. This Thursday, January 25, Kenneth Smith is expected to leave death row for a second time. This time, a mask will be placed on his face, and the executioners will make him inhale pure nitrogen, thus depriving his body of oxygen. A great first in the United States.
The main promoter of nitrogen inhalation is Mike Christian. On his official website, this former Republican elected official from Oklahoma evokes a “practical, effective and humane method”. Based on a scientific study that he himself commissioned, the former member of parliament of this southern state explains that the inhalation of nitrogen causes death by hypoxia, that is to say by absence oxygen in the blood. According to this study, the condemned person would become unconscious within eight to ten seconds following inhalation, before dying within a few minutes.
However, the degree of suffering endured by the condemned remains unknown. Usually used to euthanize animals, and has therefore never been tested on humans. On January 16, the UN High Commissioner for Human Rights took up the matter, saying it was “alarmed” by this new type of execution. This “could constitute torture or other cruel or degrading treatment under international law,” said a spokesperson for the organization, Ravina Shamdasani. The latter notably emphasized that the execution protocol did not provide for sedation beforehand.
However, the American Veterinary Medical Association recommends it for animals, even large ones. The association even explains that this method is now used very sparingly, only for chickens, turkeys and pigs, and that it is considered “unacceptable” for other mammals. “Some medical experts fear that Kenneth Smith will suffer great suffering during his execution,” Robin Maher, executive director of the Death Penalty Information Center in Washington, told Le Figaro. And the convict's lawyers estimated that this method also presents "dangers for prison staff", she adds.
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In the United States, “there has always been a search for the best method of execution: the cleanest, the most dignified, the quickest, the most painless, and with the least blood possible,” recalls Simon Grivet, historian of the United States, specialist in law and justice. After independence in 1776, hanging was the order of the day. But from the second half of the 19th century, “executions were increasingly punctuated by incidents,” explains the specialist. Death is sometimes very long or the body decapitated by the rope. As the killings were public and publicized at the time, the authorities tried to find more modern and less painful methods.
From 1890, the electric chair appeared. Then a short period of gas chambers, in the 1920s. At first, these methods seemed quick and painless. But here again, incidents follow one another. “Despite the 8th Amendment, which prohibits cruel and unusual punishments, the Supreme Court remains silent,” indicates Simon Grivet. Several local courts began to ban certain execution methods in the 1990s. “This accelerated the transition to lethal injection, invented at the end of the 1970s,” specifies the historian. This cocktail of three drugs, which anesthetizes the condemned to death, paralyzes his muscles then causes his cardiac arrest, seems to be the right method.
But history repeats itself. “We discovered at the beginning of the 21st century that certain executioners take liberties with injections,” says Simon Grivet. Some convicts are not anesthetized but simply paralyzed. “Boppy” executions follow one another, “particularly in Oklahoma and Alabama,” says Robin Maher. Like that of Kenneth Smith in November 2022. Alabama has “a terrible record” in this area, indicates the historian. “They missed three executions in a row.”
These incidents do not make the Supreme Court react, but encourage the States to think about a new method. In 2018, the death penalty by nitrogen inhalation was approved by Oklahoma, Mississippi and Alabama. As early as July of this year, eight death row inmates requested to be executed in this way, arguing that lethal injection was not controlled. A way, undoubtedly, to save time by playing with the law.
At the end of the 2000s, states favorable to the death penalty also had to face another problem. A lot of lobbying work by Amnesty and the British NGO Reprieve was carried out from 2009 on European pharmaceutical companies which manufactured lethal drugs and supplied the United States for their executions. They stopped selling them for this use and American pharmaceutical groups followed suit. In 2014, Utah announced it was reinstating the firing squad to alleviate this problem. However, to date no convicts have been executed in this way, as they usually have a choice between two methods.
In 2017, Arkansas carried out four executions in one week because their products were nearing their expiration date and could no longer be restocked. Other states have chosen to use only one product, an anesthetic injected at a lethal dose, which kills painlessly but takes more than 45 minutes.
Conviction by nitrogen inhalation therefore presents a way of circumventing these various problems, while a priori offering rapid and painless execution... although never tested. Kenneth Smith nevertheless appealed to the Supreme Court to hope to postpone his conviction. Because the highest court in the United States has the power to suspend the execution while the condemned man's lawyers present their arguments. She also has the possibility of refusing to examine the request, which remains “the most likely option”, according to Simon Grivet, and would condemn Kenneth Smith.
If his request is accepted, the fifty-year-old will have several arguments to put forward. First, he was sentenced to death by a judge, who went against the jury's opinion (11 out of 12 jurors recommended life in prison). This process was legal at the time, but is now banned throughout the United States. Nowadays, “the jury must vote unanimously for the death sentence,” explains Simon Grivet. “There is also the fact that we have already tried to execute him, which can affect double jeopardy”, prohibited by the Constitution, underlines the historian. American law provides that every defendant has the right not to be punished again for an offense for which he has been definitively declared guilty and punished.
Kenneth Smith will be able to argue that he has already been executed. But “I doubt that the judges, mostly conservative, will revisit case law dating from 1947,” tempers the specialist. This year, a young man named Willy Francis suffered a botched conviction by electrocution, but was ultimately put to death a second time. The convicted person may also assert the cruel and unusual dimension, enshrined in the 8th Amendment, of a second conviction.