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UN urges Alabama to halt nitrogen gas execution plans

The UN human rights office has called on the US state of Alabama to halt its first planned execution of a prisoner by nitrogen gas asphyxiation this month, saying it could amount to torture and violate US commitments under international law.

Kenneth Eugene Smith, convicted for a murder-for-hire committed in 1988, is scheduled to be executed in Alabama on 25 January using the method, in which execution officials will bind a mask to his face connected to a cylinder of nitrogen intended to deprive him of oxygen.

The death penalty has been primarily carried out by lethal injection in recent years, but Alabama has said it will use nitrogen gas for Smith’s execution.

“We are alarmed by the imminent execution… through the use of a novel and untested method: suffocation by nitrogen gas,” UN rights office spokeswoman Ravina Shamdasani told reporters in Geneva.

The method, which she said had to her knowledge never been used anywhere in the world, “could amount to torture or other cruel, inhuman or degrading treatment or punishment, under international human rights law”, Ms Shamdasani warned.

The UN rights office, she said, “calls on Alabama state authorities to halt Smith’s execution… and to refrain from taking steps towards any other executions in this manner”.

She voiced concern that the US states of Mississippi and Oklahoma had also recently approved the new execution method.

While nitrogen gas has never been used to execute humans in the United States, it is sometimes used to kill animals.

But Ms Shamdasani pointed out that the American Veterinary Medical Association recommends giving even large animals a sedative when being euthanised in this manner, while Alabama’s protocol for execution by nitrogen asphyxiation makes no provision for the sedation of human beings prior to execution.

Smith, 58, was convicted of a 1988 murder for hire, and eventually sentenced to death.

He was subjected to a failed execution attempt in 2022, when execution officials were unable to set intravenous lines for the lethal injection drugs within the required timeframe.

“They spent more than an hour trying and failed. It was a botched execution,” Ms Shamdasani said.

After that dire experience Smith was now facing “this very untested method, which could amount to torture”.

She also highlighted that Smith had ongoing proceedings in a federal court against the looming execution, which have yet to be resolved.

Beyond the execution method, Ms Shamdasani reiterated the UN’s opposition to the death penalty in principle.

“The death penalty is inconsistent with the fundamental right to life,” she said.

“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.”

Last week, a federal judge ruled ruled that Alabama could proceed with the nitrogen gas method.

US states have found it increasingly difficult to obtain barbiturates used in lethal-injection execution protocols, in part because of a European ban preventing pharmaceutical companies from selling drugs to be used in executions.

As a result, some states have sought to revive older methods such as firing squads, while Alabama, Mississippi and Oklahoma have introduced new gas-based protocols.

Smith has sued the Alabama Department of Corrections, arguing that the proposed method comes with dangerous risks, including that the mask’s seal with his face might be broken allowing in oxygen, botching the execution.

Judge R. Austin Huffaker of the US District Court in Montgomery, Alabama, ruled against Smith, who sought an injunction halting the execution to allow his litigation to proceed.

“Smith is not guaranteed a painless death,” Judge Huffaker wrote in his opinion, citing a US Supreme Court precedent. He wrote that Smith “has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or super added pain.”

Robert Grass, a lawyer representing Smith, said he planned to appeal the ruling.

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