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Alabama readies never-before-used execution method that some veterinarians won’t even use for pets
If Kenneth Eugene Smith is brought to the Alabama death chamber to face execution next week for his role in the 1988 murder-for-hire of a pastor’s wife, the state plans to use an untested and untried method to end his life, suffocating him with a stream of nitrogen gas to be delivered through a face mask.
In a federal appeals court Friday, Smith’s lawyers sought to block it, arguing that not only have Smith’s constitutional rights been violated, but that he could be subjected to an agonizing death and that most of the details surrounding the state’s new execution protocol “deserve more scrutiny.”
The use of nitrogen gas will be a capital punishment first, even though it has not only been denounced by some medical professionals but also by veterinarians who oppose its use on animals. In 2020, the American Veterinary Medical Association advised against the use of nitrogen gas as a way to euthanize most mammals, calling it “distressing.” One of the few uses of nitrogen gas in animal euthanasia is with chickens.
The United Nations’ Office of The High Commissioner for Human Rights has expressed alarm, saying in a statement that the untested method “could amount to torture or other cruel, inhuman or degrading treatment or punishment under international human rights law.”
Origins of the nitrogen gas execution plan
Smith’s execution, if it is conducted as scheduled on Jan. 25, represents the most notable step forward in the strange journey of a new method devised not by scientists, but by elected officials seeking a way around increasing obstacles encountered by states that long relied on lethal injections.
The discussion of using nitrogen gas for state executions first took hold in 2015, when the Oklahoma state legislature became the first state to authorize it after shortages in the drugs used for lethal injections made executions harder to carry out. Weeks after it passed, then-Gov. Mary Fallin signed it into law, saying that if lethal injection becomes unconstitutional or unavailable, the state could carry out an execution utilizing nitrogen gas.
Jay Reeves / AP; inset: Alabama Department of Corrections
The legislation was the brainchild of former Oklahoma state Rep. Mike Christian. At the time, Christian told The Oklahoman that he thought the method was “revolutionary” and that it was “probably the best thing we’ve come up with since the start of executing people by government.” Christian touted its wide accessibility, cost effectiveness and the state’s ability to even make their own nitrogen gas if needed.
Prior to the vote coming to the floor, the bill went through multiple hearings and lawmakers enlisted the research help of a group of professors and those who had experienced hypoxia — oxygen deprivation — in the past.
Michael Copeland, a former professor at East Central University, was part of a three-person team that assisted the Oklahoma state legislature in conducting a study into how the method would work. He told CBS News that this wasn’t an unusual request — he said he had “often done pro bono work for the legislature on different criminal justice issues.”
A 30-slide PowerPoint was used to present the idea and how it would work during a committee hearing in February 2015. The presentation said the method was derived “by reviewing the scientific, technical and safety literature related to nitrogen and other inert gas inhalation.”
Among their conclusions was that “induced hypoxia via nitrogen inhalation would be a humane method to carry out a death sentence.” The slideshow credited a 1995 National Review piece and a Slate article from 2014 as helping spur on work around the new method.
In addition to the PowerPoint slides, CBS News also viewed a 14-page document which Copeland claims was just a “rough draft” that was never meant to be published. The document includes similar information and analysis of medical literature on hypoxia from as far back as the 1960s and 1970s.
What was missing from both the rough draft of the report and the PowerPoint was testimony from medical professionals. According to Copeland, they reached out to multiple medical professionals, but when asked to go on the record with their opinions, many backed out in fear of losing their board privileges.
Former Oklahoma state Senator Ervin Yen is an anesthesiologist with over three decades of experience and helped sponsor the 2015 bill. Yen described the challenge in evaluating the viability of this new method, telling CBS News: “You can’t do research on it.”
Yen said no method of execution is completely without risk, noting that with firing squads, while the inmate’s heart stops after being shot, there remains the potential for lingering consciousness and pain.
“If you wear a tight-fitting mask it’s uncomfortable; is it pain and suffering? Well, I wouldn’t call it that,” Yen said. He added that he believes lethal injection remains the best method, and he doubted Oklahoma would ever use nitrogen gas — even as Alabama prepares to do so.
The move to try nitrogen gas for executions appears to be gaining currency among death penalty proponents.
In Nebraska, state Senator Loren Lippincott has introduced a bill to make execution by nitrogen gas an approved method. For other states, Alabama could prove to be a testing ground for whether or not they move to include it as a method of execution.
“People will wonder afterwards, was that cruel?”
But detractors are also speaking out. Dr. Joel Zivot, an associate professor at Emory University’s School of Medicine and an anesthesiologist, told CBS News he has serious concerns.
“Alabama has a terrible track record, and so it would seem to be in the interest of the public and in the interest of justice for Alabama to produce its evidence as to why this method of execution is not cruel,” Zivot said.
Zivot has filed multiple complaints to the U.N. saying he harbors concerns that this execution could be particularly disturbing to witnesses. “I believe that even if they successfully kill Kenneth Smith in this way and they don’t kill anybody else in the room, it’s going to be a very strikingly visual thing to view and people will wonder afterwards, was that cruel?”
Zivot and other critics, including spiritual adviser and anti-death penalty activist Rev. Jeffrey Hood, have raised concern that nitrogen gas could pose a risk to others in the vicinity of the execution room if a leak were to occur.
But Michael Copeland does not see it as a major threat, saying “nitrogen is an inert gas and is in no way deadly. It’s the lack of oxygen that is the problem. So if they’re concerned, all they need to do is wear an oximeter to keep their oxygen levels under check. … But really all you have to do is make sure it’s a well-ventilated room because of the way that gas is dispersed.”
No one knows exactly what Smith has in store if he walks into the death chamber as scheduled next week. This would be the state’s second attempt to execute him. In September 2022, his execution by lethal injection was stopped after the execution team took hours and failed to find a vein in which to insert the central IV line.
That incident was the third consecutive failed execution for Alabama, and it led to Gov. Kay Ivey placing a moratorium on executions and calling for a review of the state’s execution process.
The protocol that Alabama now has in place for its nitrogen gas executions has remained mostly redacted due to the state’s execution secrecy laws. According to Smith’s lawyer during Friday’s hearing, Smith was only given access to an unredacted copy in late November.
During Friday’s appeals court hearing, lawyers for Alabama claimed that the nitrogen gas execution method is the “most painless and humane method known to man.”
Smith’s lawyer argued that the mask may lead to an increased chance of harm to Smith and questioned if the state will conduct the proper checks needed to ensure that the mask will remain airtight and not leak out nitrogen or let in oxygen.
For Zivot, serious concerns remain.
“I don’t know that nitrogen gas can occur and cause a death that’s not cruel and doesn’t put anybody else at risk. Which is really an extraordinary type of problem, unprecedented in the history of American executions,” he said.
CBS News
Transcript: Ret. Gen. Frank McKenzie on “Face the Nation with Margaret Brennan,” Oct. 6, 2024
The following is a transcript of an interview with retired Gen. Frank McKenzie, former commander of U.S. forces in the Middle East, on “Face the Nation with Margaret Brennan” that aired on Oct. 6, 2024.
MARGARET BRENNAN: To discuss the ongoing conflict in the Middle East, we go now to retired General Frank McKenzie, who was the former commander of US forces in the Middle East. It’s good to have you back with us, General, we saw–
GENERAL FRANK MCKENZIE: Good to be with you, Margaret.
MARGARET BRENNAN: We saw the US and Israel say there would be severe consequences for what Iran did with those 180 missiles fired at Israel, President Biden said he doesn’t support an Israeli strike on Iran’s nuclear facilities, and he’d be thinking instead about alternative targets to oil fields. What do you expect the US to do, and what do you expect to happen in the next few days?
GEN. MCKENZIE: Well, Margaret, let’s begin by saying Iran is the country that’s in a corner. Their strike against Israel several nights ago was not particularly successful. Their principal ally in the region, Hezbollah has been decapitated, and its own offensive capability is gravely limited. Hezbollah’s is gravely limited. So Iran’s on their back heel. Israel has a lot of choices here. They can choose for something that would be very escalatory in terms of a strike against the Supreme Leader himself, perhaps, or against the nuclear program, or against the oil infrastructure, or they could look at military intelligence targets. They have a wide variety of options that they can choose from. They have the capability to execute most of those attacks, I will say this, the nuclear target is a very difficult target. It’s large and complex. I held the plans for that when I was a central command commander. I’m very familiar with it. There are a lot of other alternatives to that target that perhaps you could go after first, then hold out in case you get into an escalatory ladder with the Iranians. But the Israelis are certainly going to hit back, and I predict it will be larger than the very restrained, very modulated response that we saw in April after the first large Iranian attack on Israel.
MARGARET BRENNAN: You heard the Republican Chair of the House Intelligence Committee not advocate for an attack on nuclear facilities, but say it shouldn’t be taken off the table. It’s been widely reported for some time, General that it’s only the United States who could effectively take out the underground facilities that Iran has. Does that remain the case?
GEN. MCKENZIE: Well, let me begin by saying you should never take a potential target off the menu. You want your adversary to have to plan to defend everything. So giving-giving them assistance and not knowing and not-not having to defend against a particular target is probably not the best way to establish this kind of deterrence. Having said that, the Iranian nuclear target is a very difficult target, we have special capabilities that allow us to get at it. The Israelis do not have all of those capabilities. They can certainly hurt this target if they choose to, if they choose to strike it. But again, because of its size, complexity and scope and how it’s expanded over the last 10 years, it’s a very difficult target to take out. It would be very resource intensive, and I would just, I would argue, just from a purely military point of view, there are perhaps targets that are more productive to hit in an initial response.
MARGARET BRENNAN: Do you want to give us some options?
GEN. MCKENZIE: Well, again, you know, we talked about some of them. I think oil infrastructure is certainly a possibility. And the oil infrastructure can be very broad. You can look at refineries, you can look at storage facilities, you can look at locations where the oil is unloaded onto ships. So within the oil target, it’s not monolithic. You can- you can be escalatory or less escalatory, as you look at targets there. That might be something to take a look at, but I’ll tell you the other thing, Margaret, is the Iranians made a big show of targeting the Mossad headquarters in urban Tel Aviv. Israel certainly has the capability to go after IRGC, Islamic Republican Guard Corps headquarters and intelligence buildings all around Tehran or anywhere else. Again, as we know from April, Israel has the ability to operate not with impunity, but with great force over Iran at a time and place of their choosing. And I’m sure they’re thinking about all those options right now.
MARGARET BRENNAN: There’s also that risk of unintended consequences, since you’ve characterized Iran as cornered here, are you at all concerned that this could be the kind of event that would trigger them to actually pursue a nuclear weapon? They’ve given themselves options, but they’ve never fully pursued it in the way that US intelligence has said the supreme leader would have to make the ultimate decision to do. Could this be the trigger event?
GEN. MCKENZIE: Margaret, it’s always been my belief that the Iranians flirt with breakout, with getting fissile material to create a bomb in order to extract concessions from us, because we dance, we’re very eager to come to an agreement with them on the nuclear issue, so they know they can get stuff from us. They also know if they cross that line, you can’t go back. That’s a Rubicon that can’t be recrossed. But even if they, even if they do develop the fissile material, which they can do, within a matter of days or weeks, they still have a delivery problem. They’ve got to create a missile and an entry system that will allow it to take the missile to Tel Aviv or whatever target they choose. That’s a matter of many months, and that’s the valley of death for Iran, because during that period of time, they will have declared nuclear, and they will be vulnerable. It’s not a physics problem, then it’s an aeronautical engineering problem, and the aeronautical engineering systems in Iran are going to be vulnerable to attack. So it’s not as easy as you might think for them to just declare, you know, we’re going nuclear, or to go nuclear. They’ve got to balance a number of things as they do that.
MARGARET BRENNAN: Important context. If I can ask you, sir, former President Trump, as you know, faces an ongoing assassination threat as revenge for ordering the killing of Qassim Soleimani, that Iranian general. You played a key role in that, and I know you face threats as well. Mr. Trump recently said, big threats on my life by Iran. The entire US military is watching and waiting. The Biden White House has condemned the threats, but some Republicans say it’s not loud enough. How do you think this should be messaged? Do you think Iran is getting the message not to go through with this?
GEN. MCKENZIE: So whenever we look at Iran, we need to look at what’s their basic motivation. The principal goal of Iranian statecraft is regime preservation. They view the election of President Trump as a direct threat to that regime preservation. So I have no doubt believing that Iran is very active in its attempts to go after the former president, as well as other officials, of which I am keenly, personally interested as well. But I think that-that’s what’s driving their behavior. Is desperation. Margaret, it’s actually the same sort of desperation that drove the massive attack on Israel of three or four nights ago. They’re in a corner and they really don’t have any good options, but they don’t want to sit still and do nothing. They view President Trump as worse than the alternative that could be elected.
MARGARET BRENNAN: General, thank you for your analysis.
The following is a transcript of an interview with Sen. Mark Kelly, Democrat of Arizona, on “Face the Nation with Margaret Brennan” that aired on Oct. 6, 2024.
MARGARET BRENNAN: Joining us now is Arizona’s Democratic Senator, Mark Kelly. He’s in Detroit this morning on the campaign trail for the Harris campaign. Good morning to you, Senator.
SEN. MARK KELLY: Good morning, Margaret.
MARGARET BRENNAN: I want to talk to you about Arizona, but let’s start in Michigan, which is where you are right now. And it is going to be such a key state to a potential Harris or Trump victory. Vice President Harris is facing challenges among black men, working class people, as well as the Muslim and Arab populations skeptical of the White House support for Israel’s wars. What are you hearing on the ground there from voters?
SEN. KELLY: Well, my wife, Gabby Giffords, and I have been out here for a couple days. We’ve been campaigning across the country, Michigan, I’ve been in North Carolina, Georgia as well. I’ll be back to Arizona here soon. The vice president was out here speaking to Muslim organizations and the Arab community about what is at stake in this election and addressing the concerns that they have. What we’re hearing, issues about the economy, about gun violence, about, you know, supporting American families and the difference between Donald Trump and Kamala Harris. You know, Kamala Harris, who has a vision for the future of this country, Donald Trump, who just wants to drag us backwards.
MARGARET BRENNAN: Today in Dearborn, Michigan, there’s a funeral service for an American man who was killed in Lebanon by an Israeli airstrike. It just underscores how that community you’re talking about out in Michigan feel some of what’s happening in a personal way to their community. Given how close this race is, do you think this war and the expectation it could escalate could cost Democrats both a seat in the Senate and potentially the presidency?
SEN. KELLY: Margaret, nobody wants to see escalation and it’s tragic when any innocent person, whether it’s an American or Palestinian, lose their life in a conflict. Tomorrow’s one year since October 7th, when Israel was violently attacked. Israel has a right to defend itself, not only from Hamas, but from Hezbollah and from the Iranians. But, you know, I and my wife, you know, we feel for the community here who’s been affected by this. And that’s why the vice president was out here earlier, a few days ago, meeting with that community.
MARGARET BRENNAN: But it’s a live issue.
SEN. KELLY: Yeah, sure. I mean, there is an ongoing conflict in the Middle East. Israel is, you know, fighting a war now on, I think it’s fair to say, two fronts and then being attacked by the Iranians as well. And, they- they need to defend themselves, and we need to support our Israeli ally. At the same time, when women and children lose their life, innocent people in a conflict, it is- it is tragic.
MARGARET BRENNAN: You do sit on the Senate Intelligence Committee and so I know you know how intense the efforts are by foreign actors to try to manipulate voters going into November. Just this Friday, Matthew Olsen, the lead on election threats at the Department of Justice, told CBS the Russians are, quote, highlighting immigration as a wedge issue. That is such a key issue in Arizona. Are you seeing targeted information operations really focusing in on Arizonans right now?
SEN. KELLY: Not only in Arizona, in other battleground states. It’s the Russians, the Chinese, the Iranians, and it’s significant. And we need to do a better job getting the message out to the American people that there is a huge amount of misinformation. If you’re looking at stuff on Twitter, on TikTok, on Facebook, on Instagram, and it’s political in nature, and you may- might think that that person responding to that political article or who made that meme up is an American. It could be- it could look like a U.S. service member. There is a very reasonable chance I would put it in the 20 to 30% range, that the content you are seeing, the comments you are seeing, are coming from one of those three countries: Russia, Iran, China. We had a hearing recently, with the FBI director, the DNI, and the head of the National Security Agency. And we talked about this. And we talked about getting the word out. And it’s up to us, so thank you for asking me the question, because it’s up to us, the people who serve in Congress and the White House to get the information out there, that there is a tremendous amount of misinformation in this election, and it’s not going to stop on November 5th.
MARGARET BRENNAN: Understood. And we will do our best to help parse that for viewers. But on the topic of the border, President Biden did announce just this past week new regulations to keep in place that partial asylum ban that he rolled out back in June. That’s what’s credited with helping to bring down some of the border crossing numbers in recent weeks. It was supposed to be a temporary policy, dependent on how many people were crossing at a time. Do you think this is the right long term policy, or is this just a gimmick to bring down numbers ahead of the election?
SEN. KELLY: Well, the right long term policy is to do this through legislation. And we were a day or two away from doing that, passing strong border security legislation supported by the vice president, negotiated by the vice president, and the president and his Department of Homeland Security, with Democrats and Republicans–
MARGARET BRENNAN: But this is not legislation.
SEN. KELLY: –This is bipartisan. This isn’t. But the legislation was killed by Donald Trump. We were really close to getting it passed. That’s the correct way to do this. When you can’t do that, Margaret, when a former president interrupts the legislative process the way he did, which is the most hypocritical thing I’ve ever seen in my three and a half years in the Senate. After that happened, the only other option is executive actions. And this has gone from what was chaos and a crisis at our southern border to somewhat manageable. And if you’re the border- Border Patrol, you know, this is this- you need this. I mean, otherwise it is unsafe for Border Patrol agents, for CBP officers, for migrants, for communities in southern Arizona. So it’s unfortunate that this was the- these were the steps that had to be taken.
MARGARET BRENNAN: Okay.
SEN. KELLY: But that’s because the former president didn’t allow us to do this through legislation.
MARGARET BRENNAN: Senator, we have to leave it right there. Face the Nation will be right back.
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Ex-cop who killed Daunte Wright shares story with other officers, sparking debate over redemption
Transcript: Ret. Gen. Frank McKenzie on “Face the Nation with Margaret Brennan,” Oct. 6, 2024
Transcript: Sen. Mark Kelly on “Face the Nation with Margaret Brennan,” Oct. 6, 2024
Ex-cop who killed Daunte Wright shares story with other officers, sparking debate over redemption
Transcript: Ret. Gen. Frank McKenzie on “Face the Nation with Margaret Brennan,” Oct. 6, 2024