Alabama Should Not Be Allowed to Carry Out Another Nitrogen Hypoxia Execution

Posted in: Criminal Law

David Phillip Wilson is on Alabama’s death row having been convicted and sentenced for killing Dewey Walker during a 2004 burglary at Walker’s home. The prosecution argued that Walker was attacked when he resisted the attempt by Wilson and three others to take his customized van and collection of rare coins.

On February 15, Wilson filed suit in the United States District Court for The Middle District of Alabama claiming that the state’s plan to execute him by nitrogen gas violates the Constitution’s prohibition of cruel and unusual punishment. His suit leans heavily on an account of what happened last month when Alabama carried out its first nitrogen execution.

It presents a persuasive argument about why the state should not be allowed to carry out another one.

Before looking at that argument, we should recall that the use of gas in executions has a very problematic history. As I recently noted, “One hundred years ago this month, the first gas chamber execution was carried out in the United States. On February 8, 1924, the state of Nevada used cyanide gas to put Gee Jon to death.”

Gas was first considered as an execution technology in the late 1800s. Starting in the 1870s and 1880s, the Society for the Prevention of Cruelty to Animals (SPCA) opened pounds throughout the United States which used gas to put down unwanted animals.

By 1910, the number of animal gassings had increased dramatically, and in the year 1915 alone, New York’s SPCA used gas to kill 176,000 animals.

During World War I, both the Germans and the Allies turned to gas as a tool of battle. At Ypres, Belgium in 1914, German troops shot 6,000 cylinders of liquid chlorine into French trenches, killing indiscriminately, but effectively. The British and French first used tear gas in January of 1915, and by 1917 those nations and the Germans had moved on to mustard gas, and even more lethal poison.

By the end of the war, Professor James Mills says, “100,000 tons of gas had been used by the various nations involved.” Gas had established itself as the world’s newest and most cutting-edge weapon of death.

That is why less than a decade after the end of World War I, Nevada and then other states decided to use it as an alternative to hanging.

Since that time, more than 600 people have been executed using some form of gas. Despite the promises of its proponents, death in the gas chamber has never been an easy or humane way to die.

As Elizabeth Bruenig notes, “In the gas chambers of old, little cells were filled with poison that eventually destroyed the organs of the trapped prisoners, resulting in death…. In plain view of witnesses, prisoners died screaming, convulsing, groaning, and coughing, their hands clawing at their restraints and their eyes bulging and their skin turning cyanic.”

And gas has never been a foolproof execution method. Over the hundred years of its history, more than 5% of executions by gas have been botched, making it the second most problematic execution method after lethal injection, which has a botch rate of 8%.

A report from the University of Essex Human Rights Center (HRC) tells the story of one of them. “On September 2nd 1983 at 12:08 a.m., Mississippi State Penitentiary official, T. Berry Bruce, lowered pellets of cyanide into a vat of sulphuric acid. Above it sat Jimmy Lee Gray strapped and bound to a black metal chair. As the lethal hydrocyanic gas filled the chamber, he gulped the fumes as instructed.”

The HRC report notes that “Witnesses heard 11 gasps, followed by several moans and a single loud groan. Those in the viewing gallery watched as he strained against the deathly embrace of the straps; his head slumped forward, then violently back, hitting the metal pole behind with such force as to rattle the whole chamber.”

Eight minutes in, witnesses were escorted out, while Jimmy continued convulsing and gasping for breath.”

As Wilson’s suit makes clear, sometimes the past is prologue. While the form of gas was different, what happened in the Gray execution occurred again four decades later when Alabama used nitrogen to put Kenneth Smith to death.

Wilson’s complaint reviews statements from five media witnesses chosen by the Alabama Department of Correction who were present at Smith’s execution. It states that each of them “recounted a prolonged period of consciousness marked by shaking, struggling, and rising by Mr. Smith for several minutes after the nitrogen gas started flowing.”

For example, it quotes Marty Roney of the Montgomery Advertiser who said that “Kenneth Eugene Smith appeared to convulse and shake vigorously for about four minutes after the nitrogen gas apparently began flowing through his full-face mask in Alabama’s death chamber was another 2 to 3 minutes before he appeared to lose consciousness all while gasping for air to the extent that the gurney showed several times.”

Another media witness, Kim Chandler of the Associated Press, reported that “the execution took about 22 minutes from the time between the opening and closing of the curtains to the viewing room. Smith appeared to remain conscious for several minutes. For at least two minutes, he appeared to shake and ride on the gurney, sometimes pulling sometimes pulling against the restraints. That was followed by several minutes of heavy breathing, until breathing was no longer perceptible.”

Wilson’s complaint notes that what happened during Smith’s execution was very different from what the state said would happen. In “pleadings filed with United States Supreme Court, the Eleventh Circuit, and this Court,” it says, “the Alabama Attorney General made repeated representations that the nitrogen gas protocol would work within seconds: ‘the State’s method will rapidly lower the oxygen level in the mask, ensuring unconsciousness in seconds.’”

Wilson argues that “what the witnesses saw was a far cry from the peaceful and dignified passing that the Atty. Gen. represented to the court and the public prior to the execution, whereby Mr. Smith would be rendered unconscious and unable to feel pain before he died.”

The complaint also cites extensive scientific literature demonstrating that gas is not a humane way to put anyone to death. It notes that none of the states in this country that permit medical aid in dying “authorizes doctors to use asphyxiation to help their patients die.”

Wilson contends that the court should prevent Alabama from using nitrogen in his execution because “the results of the first human experiment and now in and they demonstrate that nitrogen gas asphyxiation is neither quick nor painless, but agonizing and painful…. As evidenced by Mr. Kenneth Smith’s torturous, 22-minute execution, Alabama’s nitrogen asphyxiation protocol carries a substantial risk of causing severe pain and suffering, in violation of the Eighth Amendment.”

Wilson also offers the court details about his own medical condition that would make execution by gas particularly problematic.

And, in a particularly bold assertion, his suit quarrels with existing Supreme Court precedent and contends that no death row inmate who wishes to contend that a particular method of execution is unconstitutional should be required to identify an available alternative. “It is morally repugnant,” Wilson rightly says, “that federal judges have interpreted the Eighth Amendment to impose on persons who are going to be executed the responsibility of pleading and proving that there are more humane methods of execution than the one they are facing…. It is the moral equivalent of forcing someone to dig their own grave.”

While this compelling assertion is unlikely to persuade a federal district judge to depart from what the Supreme Court has required in methods of execution cases, it is a valuable example of the way in which litigation can speak to the future and memorialize legally authorized miscarriages of justice.

Thirty years ago, California federal district Judge Marilyn Hall Patel found that that state’s choice of gas as a method of execution was unconstitutional and effectively ended its use there. As the New York Times reported at the time, Patel “cited doctors’ reports and witnesses’ accounts of numerous past executions as evidence that dying inmates… [are] likely to suffer ‘intense physical pain,’ mainly an ‘air hunger’ similar to strangulation or drowning. The symptoms include ‘intense chest pains, such as felt during a heart attack, acute anxiety, and struggling to breathe.’”

She concluded that execution by lethal gas “is inhumane and has no place in civilized society.”

As the execution of Kenneth Smith showed, what was true in 1994 remains true today. That is why Alabama should not be allowed to carry out another nitrogen hypoxia execution.

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