Alabama's upcoming gas execution could harm witnesses and violate religious liberty

The state of Alabama plans to execute a prisoner in January using nitrogen hypoxia, a process so novel and untested that state officials required the man's spiritual adviser to sign a waiver that said he could be exposed to the gas. The acknowledgment form, exclusively obtained by NPR, also reveals that the spiritual adviser, Rev. Dr. Jeff Hood, is required to stay at least three feet away from the prisoner, which may violate both their religious liberties.

If Alabama proceeds with the execution, it will be the first time any U.S. state uses nitrogen gas to put a prisoner to death, but the second time Alabama attempts to execute Kenneth Smith.

Alabama's first attempt in 2022 to execute him failed. Before the execution was ultimately called off last year, Smith spent four hours strapped to a gurney as workers tried to insert needles into his veins to inject him with drugs. Smith's lawyers requested the state use nitrogen gas instead of lethal injection if they attempted another execution.

Hood had an early warning that this execution might be dangerous.

"When I first got in touch with Kenny," he said, "one of the first things that he asked me was, 'are you prepared to die to be my spiritual adviser'?"

The Department of Corrections asked Hood to sign a legal document confirming that the new method could put him at risk. The document declared that it was possible, although "highly unlikely," that the hose supplying gas to Smith's mask could detach and "an area of free-flowing nitrogen gas could result, creating a small area of risk (approximately two (2) feet) from the outflow." It was also possible that nitrogen gas could displace oxygen in the air above Smith's face and head, according to the document, but there would be gas sensors in the room as a safety precaution.

The Department of Corrections asked Hood to agree to remain at least three feet away "from the mask or any outflow of breathing gases discharging from the system."

Critics say the form demonstrates that Alabama has not adequately prepared for the execution and that nitrogen gas may pose serious threats to workers nearby.

"They could start to hyperventilate because their body would detect that they're in a low oxygen environment," said Dr. Joel Zivot, an anesthesiologist and associate professor at Emory University School of Medicine. "And that severe hyperventilation can lead to a stroke."

Zivot clarified that the pure nitrogen Alabama plans to use in the execution is not nitrous oxide, known as laughing gas, which is used in medical settings and can make people feel relaxed. Pure nitrogen gas causes death by suffocation; there is no euphoria.

And although the acknowledgement form asked the chaplain to stay three feet away from gas leaving the system, Zivot pointed out that nitrogen is invisible and odorless, which would make that rule difficult to follow.

"It's so telling that they just have no idea, and that they're going to try to kill him in a way that could kill other people, too," Zivot said. "They're not being realistic about what exactly is at stake here."

At the time of publication, the agency did not respond to a request for comment about their assessment of the risk to others in the room. NPR requested all other forms the Department of Corrections may have asked workers to sign, but the agency declined to share the documents. A representative said that disclosure would be "detrimental to public interest."

"There are immense safety precautions that need to be taken and the states just haven't been taking it seriously," said Robert Dunham, a death penalty attorney and adjunct law professor at Temple University. "Why is it that they're making hiding the information an official policy?"

"They could kill all of us"

This year, Hood has been present at four executions in Texas, Oklahoma, and Alabama. He's never been required to acknowledge a risk to his safety before.

"There is no doubt in my mind that Alabama is the most ill-prepared, unprofessional execution squad that exists of those three," Hood said.

Despite his reservations, Hood agreed to be Smith's adviser and signed the form on Nov. 15.

"I just cling to a real knowledge that, 'greater love hath no one than this, that one would give their life for their friend,'" said Hood, quoting scripture.

Hood has five children under the age of 12. He considered what it would be like for his wife to support them alone. But even if the worst happens, he decided, it's important for them to know what he stood for.

"They will understand that their dad, their father, always said yes."

Hood said the form he signed caused him to worry for more than his life. He believes Alabama's requirement for him to stand three feet apart from Smith would also limit his ability to do his spiritual job.

Smith and Hood are both Christian. Hood usually anoints people with oil on their forehead before they're executed, and lays his hands on them to give them their last rites.

"There's no way I will be able to do that if I can't get close to him," Hood said.

The three feet of mandatory distance could conflict with precedent set by the U.S. Supreme Court. In 2022, the court ruled that the religious liberties of John Ramirez were violated when Texas denied his request to lay his hands on him in the death chamber. Ramirez was executed by lethal injection that October, with his pastor's hands on his chest.

"If we can't guarantee Kenny's rights, then certainly nobody else's rights can be guaranteed," said Hood. "How far will the state of Alabama go to curtail the religious rights of Alabamians?"

Hood said he signed the form because he felt pressured by the Department of Corrections. If he didn't agree to the state's terms, he didn't think he would be allowed to be present with Smith during his last moments.

Speaking with NPR from the William C. Holman Correctional Facility in Atmore, Ala., Smith said he doesn't think the workers in Alabama who tried to put him to death last year were competent.

"They were just sticking me over and over, going in the same hole like a freaking sewing machine," Smith said. "I was absolutely alone in a room full of people, and not one of them tried to help me at all – and I was crying out for help."

He believes Hood could be at risk if Alabama tries to kill him again with nitrogen gas, and that worries him. "I understand it's a hell of a thing that somebody would do," Smith said.

The fact that Alabama already failed the first time is telling, Hood agreed.

"They didn't even have anybody that could run a line on Kenny," he said. "And we're supposed to trust these people with nitrogen? They could kill all of us."

Debbie Elliott contributed reporting.

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