USA: IBAHRI calls on Alabama to halt untested execution by nitrogen hypoxia
The International Bar Association’s Human Rights Institute (IBAHRI) has called for the planned execution of Kenneth Eugene Smith to be stopped. It is scheduled for Thursday 25 January 2024 in Alabama, United States where the authorities intend to end his life by an untested method of execution, nitrogen hypoxia – forced nitrogen gas inhalation. The breathing in of pure nitrogen would deprive Mr Smith of the oxygen needed to maintain bodily functions. Since the introduction of lethal injection in 1982, it is the first newly suggested approach to the death penalty to be employed in the US.
According to reports, some US states are seeking different ways to execute prisoners since the medicines needed for fatal injections – the most popular method – are getting harder to locate.
In 1996, Mr Smith was found guilty of killing someone for pay in 1988. The jury voted by 11-1 to recommend life imprisonment without parole. However, the judge overrode the jury recommendation and sentenced him to death. In 2017, Alabama abolished the practice of judicial override, but this was not applied retroactively to defendants convicted of capital murder and sentenced to death prior to this date.
In November 2022, Alabama authorities attempted and failed to execute Mr Smith by lethal injection, unsuccessfully trying to find a vein to insert an intravenous line. A Circuit Judge on the 11th Circuit Court of Appeals described Smith’s experience as ‘horrifying’, involving ‘protracted, severely painful, and grisly efforts’ to establish the intravenous line.
In response to a shortage of lethal injection drugs in 2018, Alabama authorised the use of nitrogen hypoxia as a method of capital punishment. In August 2023, the state released the first-ever execution protocol for the technique, some details of which have been redacted. According to the United Nations Human Rights Office, Mr Smith has ongoing, unresolved proceedings in federal court against his upcoming execution.
IBAHRI Co-Chair and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, commented: ‘The use of experimental capital punishment methods based on redacted protocols is an affront to human dignity, transparency, and the right to life. We share the concerns of UN Special Procedures and the UN Human Rights Office that the novel and untested use of nitrogen hypoxia could amount to torture or other cruel, inhuman, or degrading treatment or punishment. The IBAHRI, opposing and condemning the death penalty in all circumstances, echoes the appeal to relevant authorities to halt the execution of Kenneth Smith and any others scheduled to be executed in this manner.’
On 3 January 2024, four UN experts, Special Rapporteurs, expressed alarm over the potentially imminent execution of Mr Smith, citing concerns that nitrogen hypoxia would result in a painful and humiliating death and warning that experimental executions by gas asphyxiation, such as nitrogen hypoxia, will likely violate the prohibition on torture and other cruel, inhuman, or degrading punishment.
The Special Rapporteurs – Morris Tidball-Binz, Special Rapporteur on extrajudicial, summary or arbitrary executions, Alice Jill Edwards, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Tlaeng Mofokeng, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and Margaret Satterthwaite, Special Rapporteur on the independence of judges and lawyers – also recalled the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. This instrument guarantees that no detainee shall be subjected to any medical or scientific experimentation that may be detrimental to their health.
The United States is a party to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits torture and other ill-treatment, as well as the International Covenant on Civil and Political Rights (ICCPR), which upholds, inter alia, the right to life, the right to an effective remedy and the principle of retroactive leniency regarding criminal penalties. Article 15(1) of the ICCPR states: ‘If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.’
IBAHRI Co-Chair Mark Stephens CBE, stated: ‘We are further concerned that two other US states – Oklahoma and Mississippi – have also authorised nitrogen hypoxia as an execution method. The UN Human Rights Committee has held that Article 6(6) of the ICCPR, reaffirms the position that retentionist States should be on an irrevocable path towards the abolition of the death penalty in the foreseeable future. With the world moving towards universal abolition, we call on US officials at state and federal levels to reconsider the application of the death penalty and to introduce an immediate moratorium on its use with a view to abolition.’
According to the Death Penalty Information Center, only five states in the US – Alabama, Florida, Missouri, Oklahoma and Texas – conducted executions in 2023 and seven states imposed new death sentences - Alabama, Arizona, California, Florida, Louisiana, North Carolina and Texas. Furthermore, for the first time, a Gallup poll reported that more Americans believe the death penalty is administered unfairly (50 per cent) than fairly (47 per cent). As of 31 December 2022, close to three quarters of countries worldwide have abolished capital punishment in law or practice, according to reported statistics.
Independent experts at the UN, Mr Tidball-Binz and Ms Edwards, have previously argued that ‘although international law permits the death penalty in very limited circumstances, in practice it is almost impossible for states to impose the death penalty while complying with human rights obligations, including the absolute and universal prohibition of torture’.
Notes to the Editor
- Click here to download a PDF of: IBAHRI Council Resolution on the Abolition of the Death Penalty
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- The International Bar Association’s Human Rights Institute (IBAHRI), established in 1995 under Founding Honorary President Nelson Mandela, is an autonomous and financially independent entity, working to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.
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The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, it was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice.
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