On 25 January Alabama intends to be the first US state to use nitrogen gas inhalation as an execution method. Despite a manifestly unjust trial, the presence of convincing science against this new method, and globally accepted human rights standards, the state is pushing ahead to kill Kenneth Eugene Smith.

The Oxford Human Rights Hub last week hosted a discussion on the case chaired by Professor Sandra Fredman at Pembroke College. Focussing on the issues that Dr Joel Zivot and I had raised in our Complaint on behalf of Kenneth to the UN Special Procedures Branch, we were joined by Professor Margaret Satterthwaite, UN Special Rapporteur on the independence of judges and lawyers, one of the four Special Rapporteurs who provided a Communication on the case to the US government.

The Manifest Injustice in Kenneth’s Case

Kenneth’s case is a clear miscarriage of justice. The prosecution withheld exculpatory evidence which would have demonstrated he had no knowledge his accomplice, John Parker, intended to kill Elizabeth Sennett. The judge failed to properly instruct the jury on the distinction between a capital and non-capital offence, and even though (in a 11-1 vote) the jury recommended life imprisonment, the judge imposed the death penalty. By all reasonable standards Kenneth should not have been sentenced to death under state law, and federal law should have been applied to set aside his death sentence.

The Botched and Failed Lethal Injection 

In 2010 Alabama executed John Parker by lethal injection for the murder. Then on 22 November 2023, the state attempted to execute Kenneth. The process was botched, as while being strapped to the gurney for 4 hours and receiving numerous puncture wounds over his arms, the state was unable to locate an appropriate vein. He suffered spinal injuries after being tipped upside-down and continues to suffer from the physical and psychological effects of this torture.

The United Nations’ Response     

Dr Morris Tidball-Binz evaluated the human rights violations in the case under the mandate of the Special Procedure on extrajudicial, summary, and arbitrary executions. Four Special Rapporteurs jointly authored a Communication stating that execution by nitrogen gas inhalation may result ‘in a painful and humiliating death,’ and ‘will likely violate the prohibition on torture and other cruel, inhuman or degrading punishment.’ On 16 January, Ravina Shamdasani, Spokesperson for the High Commissioner for Human Rights, sounded the global ‘alarm’ over this new method of execution as it raises ‘serious concerns’ of human rights violations.

‘Method-of-Execution’ Challenges

Dr Joel Zivot has argued that in the likelihood that the mask will dislodge during the execution (emitting dangerous gas), Kenneth will potentially experience seizures. If this happens he will likely vomit and die from suffocating on what is expelled and trapped inside his mask. This is clearly inhumane. However, proving this to the satisfaction of the US capital judicial process is another matter.

Through the US Supreme Court’s jurisprudence in Baze v Rees, Glossip v Gross and Bucklew v Precythe, the burden of proof in ‘method-of-execution’ challenges has effectively shifted from the state to the inmate. The inmate must prove that a ‘superaddition of terror, pain, or disgrace’ will be experienced, and must appropriately distinguish between a ‘facial challenge’ that a method of execution ‘is unconstitutional in all its applications’; and an ‘as applied challenge’ that ‘a method of execution that is constitutional in general but that the inmate says is very likely to cause him severe pain.’ If this is demonstrated, a ‘feasible, readily implemented’ alternative procedure must be identified that would ‘significantly reduce a substantial risk of severe pain.’

This is a perverse requirement. Under Baze, Glossip and Bucklew, Kenneth is effectively prevented from satisfying these standards as there is no applicable tested data on forced nitrogen gas inhalation on human subjects. Furthermore, Alabama has redacted the new protocol. On 10 January the District Court conceded ‘the ADOC’s familiar veil of secrecy over its capital punishment procedures.’ However, although it was reasonably presented that there is a severe risk of Kenneth having a stroke, suffocating, and being put into a vegetative state, the District Court held that Kenneth failed to meet the evidentiary standards.

On 19 January the Eleventh Circuit Court heard oral argument. If they conclude that their hands are tied by the Baze-Glossip-Bucklew reasoning, it will go to the US Supreme Court which is expected to endorse their unfair evidentiary requirements, allowing the state of Alabama to kill Kenneth.