‘The world is watching.’ Alabama executes inmate using nitrogen gas

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On Thursday, state prison workers in Atmore, Alabama, strapped a mask to Kenneth Eugene Smith, a 59-year-old man sentenced to death for his conviction in a 1988 murder-for-hire of a preacher’s wife. The prison workers then filled the mask with nitrogen. After what witnesses described as several minutes of thrashing and resistance, Smith died.

“The gas appeared to start flowing at approximately 7:58 p.m. Smith visibly shook and writhed against the gurney for around two minutes. His arms thrashed against the restraints,” wrote  Ivana Hrynkiw of AL.com. “He breathed heavily, slightly gasping, for approximately seven more minutes. At one point, his wife cried out.”

Alabama officials defended the method of execution for Smith, who had previously survived a botched lethal injection in 2022.

“The execution was lawfully carried out by nitrogen hypoxia, the method previously requested by Mr. Smith as an alternative to lethal injection,” wrote Gov. Kay Ivey, a Republican, in a statement. “At long last, Mr. Smith got what he asked for, and this case can finally be put to rest.”

John Hamm, commissioner of the Alabama Department of Corrections, said that it “appeared that Smith was holding his breath as long as he could.”

“There’s also information out there that he struggled against his restraints a little bit, but there’s some involuntary movement and some angled breathing. So that was all expected and is in the side effects that we’ve seen, researched, with nitrogen hypoxia,” or the deprivation of oxygen, Hamm added.

Rev. Jeff Hood, Smith’s spiritual advisor who accompanied him to the death chamber, disputed Hamm’s account, calling the procedure a “tortuous execution.”

“I think that anybody who witnessed this knows we didn’t see somebody go unconscious in two or three seconds. We didn’t see somebody go unconscious in 30 seconds. What we saw was minutes of someone struggling for their life,” Hood told reporters after the execution.

“We saw minutes of someone heaving back and forth. We saw spit. We saw all sorts of his mouth develop on the mask. We saw this mask tied to the gurney and him ripping his head forward over and over and over again. And we also saw corrections officials who were in the room who were visibly surprised at how bad this thing went,” he added.

“We have been lied to by Gov. Ivey. We have been lied to by Attorney General [Steve] Marshall,” Smith said. “Over and over again, we’ve been [told] this was going to be the most humane execution that humanity has ever, ever experienced. … I hope this is a moment that the people of Alabama say, ‘Not in my name.’”

Alabama still uses lethal injection as a method of execution. The state last used the traditional approach to execute prisoners in July and November of last year.

But Ivey had paused executions using intravenous drugs in November 2022, after the state botched three attempted executions. The last of those failures came with Smith because corrections workers could not find a suitable vein for an hour and a half before the death warrant expired.

Ivey lifted the moratorium after three months in February 2023, although she gave no indication at the time what, if any, changes corrections officials had made to restore her confidence.

Alabama officials said Smith preferred nitrogen hypoxia over lethal injection in a 2022 court filing.

But Smith’s attorneys contested the method in court, calling it cruel and unusual punishment that is prohibited by the Eighth Amendment. They said Smith suffered from post-traumatic stress after his botched execution, which caused nausea. They argued that Smith was likely to throw up during the execution and could choke to death on his vomit. The lawyers also raised the possibility that enough oxygen would get in the mask to cause stroke or a vegetative state, because the mask wasn’t airtight.

Federal judges, though, rejected those arguments. On Thursday night, the U.S. Supreme Court allowed the execution to proceed, with three liberal justices dissenting.

“Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before,” Justice Sonia Sotomayor wrote. “The world is watching.”

Indeed, two other states—Mississippi and Oklahoma—have authorized prison officials to use nitrogen as a method of execution, while lawmakers in Nebraska are also considering a proposal to do so. Oklahoma officials, meanwhile, say they have secured the drugs needed for lethal injections.

Many states have explored different methods of execution in recent years because pharmaceutical companies are refusing to provide them the drugs used for lethal injections. Five states have authorized firing squads, and South Carolina has allowed for execution by the electric chair. Twenty-four people were executed in 2023, the most since 2018.

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Trends, Common Challenges, Cool Ideas, FYIs and Notable Events

• IMMIGRATION: Texas’ border standoff with feds continues, despite SCOTUS order. The Texas National Guard and state troopers are still rolling out concertina wire and preventing federal Border Patrol agents from accessing most of Shelby Park, a 47-acre Eagle Pass park that sits on the bank of the Rio Grande where thousands of migrants have crossed. Those continued efforts come despite the U.S. Supreme Court earlier this week vacating a lower court’s decision that prevented Border Patrol agents from cutting the wire to apprehend people who already crossed the river. The 5-4 order didn’t give any reason and didn’t explicitly say Border Patrol agents were allowed to access the park or that the state had to remove the concertina wire. So the state has doubled down, and some Republican lawmakers have said Texas should defy the Supreme Court’s ruling. Twenty-five Republican governors issued a joint statement this week in support of Texas Gov. Greg Abbott and that state’s “constitutional right” to self-defense.


• OPIOID CRISIS: Oregon backpedals on pioneering decriminalization law. Democratic lawmakers on Tuesday unveiled a sweeping new bill that would undo a key part of the state’s first-in-the-nation drug decriminalization law, a recognition that public opinion has soured on the measure amid rampant public drug use during the fentanyl crisis. The bill would recriminalize the possession of small amounts of drugs as a low-level misdemeanor, enabling police to confiscate them and crack down on their use on sidewalks and in parks. It also aims to make it easier to prosecute dealers, to access addiction treatment medication, and to obtain and keep housing without facing discrimination for using that medication. Researchers say it’s too soon to determine whether the 2020 decriminalization law has contributed to the state’s deadly overdose surge, and its supporters say the decadeslong approach of arresting people for possessing and using drugs didn’t work.


• REDISTRICTING: Louisiana makes history with new Black congressional district. Louisiana has a second majority Black congressional district for the first time in decades after Republican Gov. Jeff Landry signed off on a new map Monday passed by the legislature during a special session last week. Lawmakers dismantled Republican U.S. Rep. Garret Graves' 6th Congressional District to create the new majority Black district, putting Graves' political future in danger. Late last year a federal appeals court upheld an earlier ruling requiring Louisiana's congressional map be redrawn to include a second majority Black district out of six to comply with the Voting Rights Act. The new boundaries will be in place for the November federal elections if the judge signs off.


• TRANSPORTATION: Violent assaults on transit workers are on the rise. “Major" assaults of transit employees—those resulting in death or requiring medical transport—rose nearly threefold nationally between 2008 and 2022, from 168 to 492, the Urban Institute found. “Operators have also reported being robbed, having things thrown at them, being doused with urine and hot beverages, being threatened at gunpoint and shot at," the group noted. The problem has affected recruitment: A survey by the American Public Transportation Association found that more than 9 in 10 public transit agencies were having difficulty hiring new employees, particularly bus drivers. The problem also affects officials’ efforts to coax people back to public transit and cities, as rising violence and incivility in public spaces are a big deterrent.


• LGBTQ: Trans candidates face challenges to get on Ohio ballots. The candidacies of three transgender women for Ohio House seats have been challenged under a little-known state law that requires disclosure of previous legal names on election documents. Ohio Gov. Mike DeWine, a Republican, is calling for a change to the policy, saying transgender candidates shouldn’t be kept off ballots for omitting their previous names. A record number of transgender candidates ran for office last year, and as that trend is on track to continue this year, observers are worried that similar laws may be used to challenge transgender candidates nationwide. It may also be a deterrent to would-be trans candidates who are reluctant to surface their deadnames. Meanwhile, the Ohio Senate voted 24-8 on Wednesday to override DeWine’s veto of a bill that blocks gender-affirming care for trans youth and prevents transgender athletes from playing women’s sports.


• WORKFORCE: Massachusetts governor drops degree requirements for most state jobs. Gov. Maura Healey filed an executive order on Thursday to ensure most state government job listings do not include degree requirements and hiring managers use a “skills-based” approach when picking candidates to fill open positions. Healey announced this decision during a speech to businesspeople, in part to spur companies to rethink their approaches to hiring. She noted that career success shouldn’t be limited to the portion of the state’s population—nearly half, per a recent census count—with a bachelor’s degree. Massachusetts will join the numerous state and local governments that have already dropped degree requirements for most jobs, including Alaska, Maryland, Minnesota, New Jersey, Pennsylvania, Utah and Virginia.


• TAXES: Ohio Republicans unveil plan to scrap $10B source of revenue. A group of Republican lawmakers unveiled a plan Tuesday to scrap the state's personal income tax by 2030, a move that would cut a major source of funding for schools, Medicaid and more. Lawmakers will introduce two bills in the House and Senate that would gradually reduce, then eliminate the income tax and get rid of the commercial activity tax imposed on certain businesses. The goal is to make Ohio "the most business-friendly state in the nation and to financially dominate the rest of the country," Sen. George Lang said. If passed, Ohio would join the ranks of nine other states—including Florida, Nevada and Texas—that don't have income taxes. Those states rely heavily on sales taxes to bring in revenue and receive additional boosts from gaming, tourism and oil. Ohio currently gets over $13 billion from its sales tax.


• CHILD CARE: Washington lawmakers consider using public land to fund child care. The Washington Department of Natural Resources wants lawmakers to approve a bill that would allow the agency to purchase land and funnel the revenue it generates to grants that would help pay for opening child care centers in communities where they’re lacking. This land would be part of a new trust. The revenue would come from either logging or leaving forests intact to capture carbon dioxide—a process known as carbon sequestration. The state estimates about 280,000 children under the age of 5 need care because both parents are working, but only about 28% have access to a nearby licensed provider. If enacted, the land trust would expand on a previous law passed by the legislature that directs revenue from the state’s new capital gains tax toward expanding access to early learning and child care and increasing rates for providers.


• ALCOHOL: In Colorado, alcohol ends more lives than overdoses. Alcohol is one of the leading causes of preventable deaths in the U.S. But problems with alcohol often go overlooked. This has been particularly true in Colorado, which consistently has one of the worst rates for drinking-related deaths in the country, yet the problem hasn’t gotten nearly the attention devoted to other drugs. In a four-part series, The Denver Post investigated why so many Coloradans are dying from drinking, and what the state could do in an effort to reduce the number of people lost. Meanwhile, Indiana, which has had a ban on happy hour for nearly 40 years, is considering legislation to lift it. A House committee Tuesday approved a bill 12-1 to reinstate the ability for restaurants to offer social hour discounts on alcoholic drinks and give them a new ability to sell specialty cocktails to-go. Most states allow happy hour. Indiana remains one of a small handful that restrict it.

Picture of the Week

There is a “totally bizarre fight” going on in Hawaii over what to do about the out-of-control stray cat population, Vox reported this week. While there are no formal estimates, experts guess that there are hundreds, if not thousands, of stray cat colonies across the state that are “managed” by locals who provide food, water and even medical care. Caring for stray cats sounds pretty harmless, but in Hawaii, the non-native predators kill local birds and can sicken humans and other animals. When the state’s wildlife agency decided to ban cat feeding outside a shopping center last year (the state still allows feeding stray cats in most other areas on the islands, except at boat harbors), a longstanding tension between cat advocates and ecologists in the state ignited. The advocates want to keep feeding the islands’ colonies, and they blame ecologists for putting the lives of one animal over another. Ecologists, meanwhile, say that is exactly what cat lovers are doing by propagating colonies: When you protect cats, more native species die by their hands. Cats have almost certainly also contributed to the extinction of birds in the state, helping turn Hawaii into the “extinction capital of the world.”

Government in Numbers

39%

The percentage of locally elected officials and more than 1 in 5 state lawmakers that said they are less willing to advocate for hot-button policy issues such as abortion and gun control for fear of abuse, according to a survey by the Brennan Center for Justice released on Thursday. The survey found that state and local elected officials are limiting their interactions with constituents and narrowing the contentious topics they are prepared to take on. Some are even contemplating quitting public life altogether. Such chilling of public discourse poses a threat to the functioning of representative democracy at every level of government, the Brennan Center, a nonpartisan authority on law and policy, concludes. The center conducted a survey of 350 state legislators and more than 1,350 local officeholders working in towns, municipalities and county governments. It found that more than 40% of state lawmakers had experienced threats or attacks in the past three years, while almost 1 in 5 local officials faced the same abuse over 18 months. The abuse is often directly related to the policy positions that elected individuals have adopted over contentious issues such as gun control and abortion.