On Thursday evening, the state of Alabama executed Kenneth Eugene Smith by nitrogen gas. Now, there are dueling narratives about what happened. Alabama claims it went perfectly, proving that nitrogen is a humane, effective alternative to lethal injection (which it previously tried, unsuccessfully, to use on Smith). It says that based on this experience, other states should follow its example. But witness accounts suggest that Smith’s death was cruel and tortuous.
I wanted to be one of those witnesses. I applied to attend as a member of the media, but I was not allowed to watch it firsthand. Alabama Department of Corrections granted me permission to be near the prison, but without a mechanism of direct observation, so I decided not to attend. Instead, I learned the details of Smith’s death by the accounting of the few who were there.
Executions are highly curated events. Direct witnesses to the actual execution must surrender their cellphones, paper, pen, and watch. They can use only memory to record what they see. These policies make it easier for the state to make extraordinary counterclaims about execution events.
Although the act of execution is shrouded in secrecy, Alabama shared facts of the preamble in great detail. On the day before the execution, Kelly Betts, the public information manager for the Alabama Department of Corrections, released a document titled “Kenneth Eugene Smith Execution January 25th, 2024, Inmate’s activities last 24 hours.”
The document notes that Smith had several visitors, named and with stated relationships: friends, relatives, a spiritual adviser. His Thursday breakfast reads like a diner special: two biscuits, eggs, grape jelly, applesauce, orange juice. It is noted that he accepted his final meal, which included steak, eggs, and hash browns.
On Friday, with Smith dead, I thought about those hash browns while working my job as an anesthesiologist and intensivist. Potatoes can be served in many forms, and I find it easy to conjure the taste and texture of a hash brown.
But there is much I don’t know about what happened. Instead of scientific and medical details of the execution, Alabama chose to share utterly meaningless dietary specifics. No matter. The state, having produced a corpse, declared the execution to have gone exactly as planned and even described it unironically as “textbook.” As no one anywhere in the world had used this technique for execution, I wonder: Where might I find such a textbook?
In the notorious hypothermia experiment, Dachau concentration camp prisoners were immersed in ice water until they died. The alleged purpose of the study was to evaluate the effects of cold-water immersion hypothermia that might be experienced by Luftwaffe pilots if they ditched in the icy cold North Sea. After the war, the findings of this experiment generated much ethical debate around the balance between the study results and the lack of volunteerism on the part of the subjects. Could an exception be made to use the knowledge for the management of hypothermia?
After decades of discussion, the issue was finally resolved. The hypothermia experiments had no scientific value because the methodology and data collection were highly flawed. The only purpose in submerging the concentration camp prisoners was to torture them to death.
Alabama claimed in advance that the nitrogen — administered by gas as Smith wore a mask — would lead to unconsciousness in seconds, and death would rapidly follow. Witness accounts, however, tell us that Smith convulsed and gasped with eyes open in terror for minutes. At one point, he was apparently dry heaving and may have vomited.
And that’s as much as we know. The viewing curtain was closed to witnesses before the official time of death, raising the unsettling question of how long it took for Smith to die — some say 22 minutes, though it may have been as long as 28 minutes.
Assuming these statements are accurate, which seems to be the case, the state’s claim that this went exactly to plan makes one thing clear: Its intent here was torture.
Perhaps some will think that’s fair because Smith was convicted of a crime. But Kenneth Smith’s goodness or badness does not matter. He was convicted of a crime, and a punishment was set. That punishment was death, not death by torture.
This was the second attempt to kill Kenneth Smith after the state’s lethal injection failed in November 2022. In that instance, the state failed to set an intravenous line after four hours of trying — also torture. The state simply ran out of time, and the execution was called off. This was the second occasion Alabama had tried and failed to kill a prisoner by lethal injection for want of an intravenous line.
As a physician, I have long fought against the misappropriation of science and medicine as an arm of state power. Not infrequently, I am asked by people in authority to therefore help design a better way to kill by using the tools of medicine and science. I always inform them that I abide by the medical ethical prohibition against physician participation in execution. While it is true that as a physician, I know how to kill, more importantly, I know how to control pain at the end of life. In my career, I have signed hundreds of death certificates and have been up close to death. These lessons and these skills are to heal only, without exception. If execution is a terminal illness, my treatment is to stop it, not to provide palliation.
I know something about execution by lethal injection because my own research found at autopsy the occurrence of bloody froth in the lungs of prisoners — “pulmonary edema” — almost 80% of the time. Lethal injection is better understood as death by drowning in your own blood. The ethical line between what I do as a physician and what skills the state wants as an executioner is cavernously wide. Alabama may be finally moving away from its debased and torturous version of intravenous anesthesia only to replace it with a torturous version of inhaled gas delivered by a mask. The state can’t seem to shake a need to impersonate the practice of anesthesiology.
Alabama has searched for a lethal injection alternative. Under an Alabama law made effective June 1, 2018, existing death row prisoners were given in a single occasion 30 days to elect, in writing, if they wanted to be killed by the forced inhalation of nitrogen gas, a technique at that time not yet formalized, or instead the often-botched traditional lethal injection. After Alabama failed to kill Smith with lethal injection, he asked for nitrogen as an alternative. This narrative falsely paints Smith as a nitrogen gas execution volunteer.
He was nothing of the sort. Since lethal injection had already failed for him, nitrogen gas was the only execution technique on offer. The state claimed nitrogen gas would be quick and painless. Perhaps he believed them. But that was a lie.
Ahead of his execution, I worried about how the state might misappropriate the results of his experimental death and claim it as scientific evidence to justify the use of nitrogen gas. I now think my concerns were unwarranted. His death was devoid of anything that could be confused with a scientific investigation apart from the petty theft of a few scientific-sounding words.
Dash cam recordings as well as cameras worn by police have helped address problem of competing witness testimony. Prisoners have no Fourth Amendment rights to privacy and the state could record an execution in high definition and play it for the public. It could study what it does and modify the procedure to comport with the letter of the law, which forbids torture. Though the idea of watching an execution might seem disturbing, the unvarnished witnessing of an execution fulfills the requirement that justice is seen to be done. Only by watching can we know that an execution is or is not cruel.
But the state is not a scientific body and has no compelling interest to improve or to be forthcoming. Broad state immunity and Supreme Court protection nullify the need for accountability. All that remained for Kenneth Smith was perhaps the memory of the flavor and texture of the last hash brown as he slowly and deliberately suffocated to death. In asking for nitrogen, Smith hoped to die by a method that would not be torture. He did not get his wish.
Joel Zivot is a practicing clinician and associate professor of anesthesiology and surgery at Emory University School of Medicine and a senior fellow in the Emory Center for Ethics. He is a widely quoted expert in his opposition to the use of medicine in capital punishment. He is also a frequently published opinion writer on the intersection of law, medicine, bioethics, and policy.