UN experts express concern over Alabama’s proposal to employ an untested gas approach in executing a prisoner

Four UN experts have expressed concern over the upcoming execution of Kenneth Smith in Alabama. They warn that the state’s intention to use an untested method involving nitrogen gas could subject him to cruel and inhuman treatment amounting to torture.

In a joint statement released on Wednesday in Geneva, the four independent UN monitors urge the US government and Alabama to halt the execution scheduled for 25 January. They accuse the state of rushing ahead with an experimental execution technique that could cause severe suffering for Smith, violating the international ban on torture.

“We are worried that nitrogen hypoxia would result in a painful and degrading death,” the experts state, noting that this technique has never been used in an execution before.

Smith, aged 58, was sentenced to death for the murder of Elizabeth Sennett in 1988. He had been paid $1,000 by the victim’s husband, a pastor seeking an insurance payout, to carry out the killing.

During the trial, the jury voted by a large majority of 11 to 1 in favor of giving Smith a life sentence. However, the judge overruled them and sentenced him to death row.

In November 2022, Alabama attempted to execute Smith through lethal injection but was unsuccessful after four hours of struggling to find a vein. This failed attempt has placed Smith in a highly unusual category – that of a death row inmate who can describe surviving an execution.

A few months after the botched execution, Alabama announced its intention to try again, this time using a new method called “nitrogen hypoxia”. It involves placing a mask on the prisoner through which pure nitrogen is passed, leading to a gradual deprivation of oxygen and eventual death.

The UN experts caution that this method is not well understood and there is no scientific evidence to prove that Smith would not experience a level of suffering that would be illegal under international law and possibly tantamount to torture. They warn that the state risks violating both the convention against torture, which the US has signed, and international prohibitions against harmful medical and scientific experimentation on humans.

The four UN experts are all special rapporteurs who serve as fact-finders and watchdogs within the UN human rights system. They were led by Morris Tidball-Binz, the special rapporteur on extrajudicial, summary, or arbitrary executions.

Three other UN experts also joined in the warning: Alice Jill Edwards, the special rapporteur on torture; Tlaeng Mofokeng, the expert on the right to physical and mental health; and Margaret Satterthwaite, the expert on the independence of the judiciary.

The intervention of the UN experts was triggered by a detailed complaint from specialists in the UK and US. Jon Yorke, a professor of human rights at Birmingham City University law school in England, and Joel Zivot, an expert in execution methods at Emory University hospital in Atlanta, investigated Alabama’s plans and concluded that they violated six critical articles under international law, including the ban on torture and inhumane punishment.

“If Kenneth Smith is executed by Alabama, it will be a miscarriage of justice and a barbaric act of state violence,” said Yorke.

Zivot stated that Alabama’s plan for the execution, outlined in heavily redacted protocols, falls short in many fundamental ways.

“It conceals certain details of the plan under a veil of secrecy, and secret executions are practices of those who oppose justice. As a civil society, we rightly condemn such behavior,” he added.

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