Innovation In Execution: Disrupting Death?

Medicalized death absent medical professionals is a horrible idea.

This week, America developed a brand new way to execute somebody. There are so many ways to die; it seems like an area that doesn't require additional innovation. Yet, here we are, thanks to the state of Alabama. A man was put to death by suffocation with nitrogen gas. This was a brand-new execution method.

This is their second pass at attempting to put a man to death after botching it the first time. I do not want this piece to be understood as either pro or anti-death penalty. I can have feelings about that, and so can my readers. Instead, I’d like to focus on how we spend our energy as a society and where the medical profession intersects with the administration of justice.

The backstory on Kevin Eugene Smith is grim (Quoting the NY Times):

Kenneth Eugene Smith, 58, was one of three men convicted in the stabbing murder of Elizabeth Dorlene Sennett, 45, whose husband, a pastor, had recruited them to kill her in March 1988 in Colbert County, Ala.

According to court documents, Ms. Sennett, a mother of two, was stabbed 10 times in the attack by Mr. Smith and another man. Charles Sennett Sr., Ms. Sennett’s husband, had recruited a man to handle her killing, who in turn recruited Mr. Smith and another man.

Mr. Sennett arranged the murder in part to collect on an insurance policy that he had taken out on his wife, according to court records. He had promised the men $1,000 each for the killing.

Mr. Smith was sentenced to death for this contract killing, and the first attempt at ending his life by the state was not a success (again, from the NY Times):

In November 2022, the state tried to execute Mr. Smith using lethal injection. But that night, a team of correctional facility workers tried and repeatedly failed to insert an intravenous line into Mr. Smith’s arms and hands and, eventually, a vein near his heart.

Finally, after multiple attempts, prison officials decided that they did not have the time to carry out the execution before the death warrant expired at midnight.

Amature Hour?

My first point: Physicians are not allowed to put humans to death in the US. This means that, frankly, only amateurs are involved in the process. It turns out that finding an IV line is a skill that requires medical training. Nurses are great at it. Doctors, often less so. It takes practice¹. Only rarely performing procedures like obtaining IV access? This means, reliably, it will get messed up—because some individuals’ veins are difficult to access.² How common is “difficult” IV access? Very:

“Prevalence estimates varied widely from 6% to 87.7% across 19 publications, reflecting differences in definitions used.”

Additionally, a History of IV drug use, more common in those who are being put to death than the general population, predicts difficult access by an Odds Ratio of 2.5, 95% CI 1.1-5.7).³

Lethal Injection sounds medicalish and that sounds more humane. However, given the prohibition by the AMA⁴ on physicians assisting in executions⁵, it will reliably go badly enough of the time to make this “reliably unreliable”—and I am arguing that this means it’s cruel and unusual punishment. This standard has been understood by legal scholars as follows:

the protection against the infliction of "cruel and unusual punishments" arose out of a desire to protect against torture and the arbitrary infliction of punishments, including ones that were either out of step with societal values or that had become at odds with societal norms.⁶

Medicalized treatment absent medical professionals isn’t usual and it’s likely to be cruel. It’s rolling the dice on preserving some dignity and decorum—even for the executioners themselves, who often develop PTSD.

Nitrogen Gas Is Suffocation

Although it is true that not breathing oxygen and replacing it with nitrogen will kill someone⁷, its use by the state to end life was novel. It’s hard to argue this is usual. Here is what was observed, as quoted in the press, when Alabama took its next pass at Mr. Smith’s execution with nitrogen suffocation:

There was some involuntary movement and some agonal breathing, so that was all expected and is in the side effects that we’ve seen and researched on nitrogen hypoxia,” Hamm said. “So nothing was out of the ordinary of what we were expecting.” Agonal breathing is an irregular, gasping breath pattern that can happen when someone is near death.

This is a horrible thing to behold. It wasn’t going to be pleasant, of course:

Smith’s spiritual adviser, the Rev. Jeff Hood, … described it in more graphic terms, saying it was “the most horrible thing I’ve ever seen.”

Further descriptions from the scene are as follows:

Smith, wearing a tight-fitting mask that covered his entire face, convulsed when the gas was turned on, “popped up on the gurney” repeatedly, and gasped, heaved and spat, Hood said.

In our name, the verdict was understood by reverend Hood as follows:

“It was absolutely horrific,” he said.

Suffocating to death with nitrogen is still dying. It's still horrible. There is, however, a lot of very medical physiology involved:

Hypoxia endured over an extended period may not result in damage and may only cause a loss of consciousness if the alveolar O₂ tension falls below 33 Hgmm. The clinical symptoms of hypoxia (headache, dyspnoe, difficulty in concentration, occasionally euphoria) are manifestations of lack of oxygen and can be caused by an alveolar O₂ tension below 50 Hgmm within hours.⁸

Understanding that physiology sounds above the pay grade of prison employees. We have all heard stories about people who drown and are resuscitated because hypoxia is not a quick way to die.⁹ It takes 5-10 minutes, or more.

Mr. Smith was a murderer for hire. This was not a nice person. This was not a kind person. This man may have deserved to die, according to the state (though in his case, not the jury). It might also be the case that we—the public and those prison employees tasked with ending his life— deserve not to have to come up with a brand new way to kill him for the benefit of politicians.

I believe there is enough death and misery in the world. Does spending time creating novel ways to end human life seem the opposite of quixotic? We all deserve better.

1. Hartman, J. H., Baker, J., Bena, J. F., Morrison, S. L., & Albert, N. M. (2018). Pediatric Vascular Access Peripheral IV Algorithm Success Rate. Journal of Pediatric Nursing, 39, 1-6. https://doi.org/10.1016/j.pedn.2017.12.002

2. Bahl, A., Johnson, S., Alsbrooks, K., Mares, A., Gala, S., & Hoerauf, K. (2023). Defining difficult intravenous access (DIVA): A systematic review. The journal of vascular access, 24(5), 904-910.

3. Fields, J. M., Piela, N. E., Au, A. K., & Ku, B. S. (2014). Risk factors associated with difficult venous access in adult ED patients. The American Journal of Emergency Medicine, 32(10), 1179-1182. https://doi.org/10.1016/j.ajem.2014.07.008

4. Ragon, S. A. (1994). A Doctor's Dilemma: Resolving the Conflict Between Physician Participation in Executions and the AMA's Code of Medical Ethics. U. Dayton L. Rev., 20, 975.

5. Freedman, A. M., & Halpern, A. L. (1996). The erosion of ethics and morality in medicine: physician participation in legal executions in the United States. NYL Sch. L. Rev., 41, 169.

6. Bessler, J. D. (2017). The Concept of" Unusual Punishments" in Anglo-American Law: The Death Penalty as Arbitrary, Discriminatory, and Cruel and Unusual. Nw. JL & Soc. Pol'y, 13, 307.

7. Giorgetti, A., Pelletti, G., Barone, R., Garagnani, M., Rossi, F., Guadagnini, G., ... & Pelotti, S. (2020). Deaths related to nitrogen inhalation: Analytical challenges. Forensic Science International, 317, 110548

8. Buris, L., & Buris, L. (1993). Death by suffocation. Forensic Medicine: Diagnosis and Signs of Death/Special Autopsy Techniques/Injuries and Accidents/Wounds and Wound Healing/Sudden, Unexpected Death/Suffocation, Infanticide, Sexual Offences, Criminal Abortion/Paternity/Toxicology/Identification of Victims, 219-236.

9. Michiels, C. (2004). Physiological and pathological responses to hypoxia. The American journal of pathology, 164(6), 1875-1882.