Alabama death row inmate files lawsuit claiming Kenneth Smith's nitrogen gas execution was a botched 'human experiment'

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MONTGOMERY, ALABAMA: An Alabama death row inmate filed a lawsuit claiming that the first person executed by nitrogen gas in the country trembled violently for several minutes in "a human experiment that officials botched miserably." The lawsuit filed on Thursday, February 15, contested the constitutionality of the technique.

The lawsuit submitted to a federal court in Alabama, claims that Kenneth Eugene Smith's nitrogen gas execution in January was cruel and "cannot be allowed to be repeated."

Lawsuit filed against nitrogen gas execution of Kenneth Eugene Smith

Under the lawsuit, state officials' claims to federal judges that nitrogen would cause Kenneth Eugene Smith to die quickly and humanely were refuted by witness accounts of Smith shaking and convulsing.

According to the Irish Examiner, “The results of the first human experiment are now in and they demonstrate that nitrogen gas asphyxiation is neither quick nor painless, but agonizing and painful,” attorney Bernard E Harcourt wrote.

David Phillip Wilson, a prisoner on death row who was found guilty of killing a man during a 2004 break-in, filed the lawsuit on his behalf.

The lawsuit seeks a declaratory judgment that the current nitrogen gas asphyxiation protocol violates the inmate’s constitutional right to protection from cruel and unusual punishment.

Alabama, Oklahoma, and Mississippi are the three states where nitrogen gas is legal, but no state has ever tried to use it before. Smith had a respirator face mask which is typically worn in an industrial setting to provide life-sustaining oxygen fastened to his head during the execution. Then, pure nitrogen gas was forced into it, depriving him of oxygen and causing his death.

Attorney General plans to use nitrogen gas in future executions

The state told the courts that Smith would be rendered unconscious by the nitrogen gas "within seconds," but the lawsuit claims that witness and media accounts of the execution contradict this claim.

At the beginning of the execution, Smith trembled for several minutes in fits of thrashing spasms and seizure-like movements. At least once, the gurney moved visibly due to the force of his movements.

According to the lawsuit, the state in which the problematic execution occurred already had a "bad track record of botched executions."

In 2022, following an unprecedented third unsuccessful lethal injection attempt, Alabama Governor Kay Ivey ordered an internal review of the state's execution procedures.

Attorney General Steve Marshall of Alabama has insisted that the execution was "textbook" and stated that the state intends to use nitrogen gas to carry out more executions.

“As of last night, nitrogen hypoxia as a means of execution is no longer an untested method. It is a proven one,” Marshall offered assistance to states thinking about implementing the technique the morning following Smith's execution.