The Death Penalty via Nitrogen Hypoxia Violates the First Amendment

Credit: Hédi Benyounes

On January 25th, 2024, the state of Alabama pronounced Kenneth Walker Smith dead at 8:25 PM central time. Following years of litigation, Smith, who was convicted of murder in 1996, was executed by the state via the use of a novel execution method: nitrogen gas (Bogel-Burroughs 2024). The idea of using nitrogen gas to carry out an execution was first proposed by Oklahoma State Representative Mike Christian in 2014, as states had struggled to acquire lethal injections amidst pressure to end the death penalty. Christian's proposal was partially inspired by a 14-page report co-authored by Michael Copeland, an assistant professor of criminology at East Central University in Ada, Oklahoma (Smith 2022).

Proponents of the method assert that the use of nitrogen gas is a more humane method of execution than lethal injection, arguing it will lead to "unconsciousness in seconds" and would be painless (Bogel-Burroughs 2024). However, prior to the execution of Smith, capital punishment via nitrogen gas had never been conducted anywhere in the world. Joel Zivot, an associate professor of anesthesiology at Emory University, said that "there is no evidence" that the use of nitrogen gas "would cause a death that would be peaceful and not cruel" (Smith 2022). Ultimately, Zivot's prediction appeared to be correct, with journalists who witnessed the execution describing Smith as conscious for several minutes, including "writhing and thrashing for approximately two to four minutes," which was followed by "around five minutes of heavy breathing." Based upon this description, Alabama likely violated the Constitution's Eighth Amendment's prohibition on Cruel and Unusual Punishment (Geidner 2024). However, the execution also likely violated Smith's First Amendment rights to free speech and the free exercise of religion.

When entering the executing chamber, Smith was fitted with a "one-size-fits-all" mask that distributes the nitrogen gas. By requiring Smith to be masked before being executed, it prohibited him from being able to make a final statement that was audibly clear to the journalists and others who witnessed his execution—a violation of the First Amendment's protections for freedom of speech. There is also no compelling government interest in requiring Smith to wear the mask while making a final statement when the mask can presumably be placed on after he has made the statement. Furthermore, by being forced to speak with a mask on, Smith raised concerns about loosening the mask and breaking the seal, which would lead to a botched execution. These concerns could have contributed to Smith speaking for a shorter period than he was legally permitted.

In the 2022 US Supreme Court case, Ramirez v. Collier, Chief Justice Roberts, writing for the Court, referring to audible prayer, said, "there is a rich history of clerical prayer at the time of a prisoner's execution, dating back well before the founding of our Nation” (id at 1278). In his opinion, Roberts referenced multiple instances in American history where convicted criminals audibly prayed before they were executed. These instances included the Revolutionary War, where chaplains "spoke and prayed with the condemned during their final moments" (id at 1279) and the four individuals involved with the assassination of President Abraham Lincoln were accompanied by spiritual advisors who "ministered to the condemned, and three spoke public prayers" (ibid).

However, placing a mask on Smith's head prohibited him from being able to audibly pray, which was his right under the First Amendment's Free Exercise clause. Furthermore, the same concerns raised by Smith about audible speaking — and potentially breaking the mask's seal, which could have resulted in a botched execution — remain relevant for audible prayer. These concerns may have discouraged Smith from audibly praying. Even if Smith attempted to pray audibly, the fact that he was described as "writhing and thrashing" during the execution likely shows that audible prayer was impossible for Smith.

In the 2014 Supreme Court decision, Burwell v. Hobby Lobby Stores, Inc., Justice Samuel Alito wrote for the Court, saying: "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" (id at 2761, quoting § 2000bb-1(a)). Preventing Smith from audibly praying rises to the standard described by Alito in Hobby Lobby as no other alternative to audible prayer exists — especially since many individuals prefer audible prayer to silent prayer. Additionally, there are means of execution that Alabama could use, other than the use of nitrogen gas, that would also allow Smith to pray audibly.

In Ramirez, John Ramirez, a Texas death row inmate, argued he had a right to be touched by his pastor while being executed under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) and the Free Exercise Clause. Roberts wrote in his opinion: "Texas's categorical ban on religious touch in the execution chamber is inconsistent with his rights under RLUIPA" (Roberts). However, Reverend Dr. Jeff Hood, a Catholic priest and death row minister, was unable to touch Smith during the execution. Alabama required Hood to sign a waiver acknowledging that there is a risk that nitrogen could discharge from the mask, posing a health risk. Furthermore, the waiver also required Hood to stand a minimum of three feet away from Smith, preventing physical touch — in defiance of Ramirez (Conlon 2024).

Following the execution of Smith, Alabama's Attorney General Steve Marshall argued that the "method offers a blueprint for other states," and the states of Mississippi and Oklahoma have legally authorized executions to be carried out using nitrogen gas (Bogel-Burroughs 2024). With states having trouble securing lethal injections, they are likely to use nitrogen gas as an avenue to carry out the death penalty. However, these states must comply with the Constitution's First Amendment to ensure that prisoners, who will soon be executed by the state, have freedom of speech and free exercise of their religion.

Bibliography

Alito, Samuel. 2014. Burwell v. Hobby Lobby Stores, Inc. 573 U.S. 682 (2014). 

Bogel-Burroughs, Nicholas. 2024. “Alabama Carries Out First U.S. Execution by Nitrogen.” The New York Times, January 1, 2024. https://www.nytimes.com/2024/01/25/us/alabama-nitrogen-execution-kenneth-smith.html.

Conlon, Riley. 2024. “'Horror is an understatement': Spiritual advisor for Kenneth Smith prepares to enter execution chamber.” WVTM-13, January 23, 2024. https://www.wvtm13.com/article/kenneth-smith-execution-priest-alabama-jeff-hood-death-penalty/46496713.

Geidner, Chris. 2024. “SCOTUS conservatives allowed Alabama to suffocate Kenneth Smith to death.” LawDork, January 25, 2024. https://www.lawdork.com/p/breaking-scotus-conservatives-allow.

Johnson, Andrew B. 2023. “Smith v. Hamm - Second Amended Complaint.” United States District Court For The Middle District of Alabama, Filed November 28, 2023. https://storage.courtlistener.com/recap/gov.uscourts.almd.81685/gov.uscourts.almd.81685.31.0.pdf.

Roberts, John. 2022. Ramirez v. Collier 142 S. Ct. 1264 (2022).

Smith, Dana. 2022. “Nitrogen Execution Method Touted as More ‘Humane,’ but Evidence Is Lacking.” The Christian Science Monitor, September 23, 2022. https://www.scientificamerican.com/article/new-execution-method-touted-as-more-humane-but-evidence-is-lacking/.