UN Rights Experts Says Alabama Nitrogen Execution May Constitute Torture

As the United States insists on continuing state-sanctioned killings despite a European ban on drugs commonly used in capital punishment, the United Nations Human Rights Office warned Tuesday that Alabama officials may soon violate international laws banning torture as they plan to use nitrogen gas in an upcoming execution.

A number of U.N. officials have said in recent days that the planned execution of Kenneth Smith, who was convicted for a 1988 murder, should be halted as it likely will violate the U.S. Constitution's ban on cruel and unusual punishment. Smith is scheduled to face the death penalty at Alabama's Holman Correctional Facility on January 25, with authorities binding a mask to his face to forcibly administer nitrogen gas, which would deprive him of oxygen.

On Tuesday, Ravina Shamdasani, a spokesperson for the U.N. Office of the High Commissioner for Human Rights (OHCHR), said that by allowing the execution, the U.S. may also breach two international human rights treaties—the Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.

"The death penalty is inconsistent with the fundamental right to life. There is an absence of proof that it deters crime, and it creates an unacceptable risk of executing innocent people," said Shamdasani. "Rather than inventing new ways to implement capital punishment, we urge all states to put in place a moratorium on its use, as a step towards universal abolition."

Pro-death penalty officials in the U.S. have in recent years sought to carry out executions using obsolete or untested methods, as the European Union has banned pharmaceutical companies from selling medications that can be used in capital punishment.

"What does it say about the morally-enervated condition of our political culture that the state of Alabama is so eager to try for a second time to kill someone... that it's willing to put the lives of a pastor and its prison execution team at risk?"

Experts say Smith would be the first person in the world to be killed via capital punishment using "asphyxiation with an inert gas."

A federal judge ruled last week that Alabama could proceed with Smith's execution using nitrogen. Smith had sued the Alabama Department of Corrections, arguing that the execution, if botched, could leave him in a permanent vegetative state or cause a stroke, and that the method carries the risk of "particular pain and suffering."

A previous attempt to execute Smith was botched by Alabama prison officials in 2022, when, as journalist Robyn Pennachia wrote at Wonkette, officials "spent hours and hours trying and failing to properly insert an IV while Smith was strapped to a gurney."

Shamdasani noted that Alabama's plan to execute Smith does not even meet the standards put forth by the American Veterinary Medical Association, which recommends sedating animals that are euthanized using nitrogen gas.

"Nitrogen gas has never been used in the United States to execute human beings," said Shamdasani. "Alabama's protocol for execution by nitrogen asphyxiation makes no provision for sedation of human beings prior to execution."

Mississippi and Oklahoma have also approved the use of nitrogen gas for executions in the absence of barbiturates for lethal injections, while Utah, South Carolina, and Idaho are among the states that have approved firing squads as a capital punishment method.

The U.N. Human Rights Committee, said Shamdasani, "has also criticized the use of asphyxiation by gas as an execution method, the use of untested methods, as well as widening the use of the death penalty in states that continue to apply it."

Amnesty International has pointed out that the jury that convicted Smith in 1996 supported life imprisonment without the possibility of parole, but a judge imposed a death sentence "under a judicial override system outlawed in Alabama in 2017."

As Jeffrey St. Clair wrote at Counterpunch last week, Alabama officials seem "uncertain about how the execution might unfold," and are requiring Smith's spiritual adviser, who is permitted to be in the execution chamber, to sign a waiver requiring him to stay three feet away from Smith due to the risk that "a hose supplying nitrogen to Smith's mask detaches from his face, filling an area around him with the potentially deadly odorless, tasteless, invisible gas."

"What does it say about the morally-enervated condition of our political culture that the state of Alabama is so eager to try for a second time to kill someone (whose own jury didn't think should be put to death in the first place) that it's willing to put the lives of a pastor and its prison execution team at risk?" wrote St. Clair. "Other states are eagerly awaiting the death notice from Holman Prison so that they can accelerate their stalled rosters of slated killings by using this ghastly new method. The execution of Kenneth Smith will signal yet another triumph of American efficiency culture, where death always seems to find a way."