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January 6, 2024

Execution using Nitrogen Hypoxia is Doomed to Fail

In the run-up to Christmas, I spent a good deal of my time and all my concentration on the ‘stay of execution’ legal appeal with the lawyers for Kenny Smith in the US State of Alabama, arguing that their planned Execution using Nitrogen Hypoxia is Doomed to Fail.

Kenneth Eugene Smith & Philip Nitschke at Holman Prison Dec 2023

Kenny Smith with Philip Nitschke, 13 December 2023

I was pleased to be able to appear as an expert witness for the defense of Kenny. However, my visit to Holman Correctional Facility (aka Holman prison) left me haunted.

But let me start at the beginning.

I had not been to the US for many years and was nervous about visiting again. While this country makes the best beer in the world, its track record on a whole range of stuff (including guns and the death penalty) disturbs me greatly.

I know I’m not the only one who has reservations.

That aside, I felt I had important knowledge to contribute in regard to the use of nitrogen hypoxia (lethal low level of oxygen) as a cause of death.

My motivation in getting involved in this capital punishment case was/ is to stop the planned execution of Kenny. The man has already spent 30+ years on death row, is that not enough? In the US, the answer is apparently ‘no’.

By way of background, the State of Alabama is planning on using a closed gas system (ie. a mask) to try again to execute Kenny on 25 January 2024.

Execution using Nitrogen Hypoxia is Doomed to Fail

Execution using Nitrogen Hypoxia is Doomed to Fail

In November 2022, the first attempt to execute Kenny using intravenous lethal drugs was abandoned after several hours, after a suitable vein could not be located. The State needed a different execution method if they were going to  kill Kenny.

At the current time, no one has ever been executed using nitrogen hypoxia in the US. However, thousands of people have used the method to end their lives voluntarily.

Indeed, the use of a plastic bag and an inert gas (formerly helium but now nitrogen), is a long-established means of bringing about a peaceful and reliable elective death at a time of one’s choosing.

As I explain in the Peaceful Pill eHandbook Essentials, a hypoxic death is most usually brought about by using a plastic exit bag (or hood as the Americans call bags) plus gas.

Bags (and the Sarco capsule) can be classified as ‘open’ systems, in that there is no attempt to make a seal around the person’s face. The person breathes freely and normally. The plastic bag is loose fitting and it never touches the person’s face.

The low oxygen, low carbon dioxide environment is created via a flow of nitrogen into the bag. The oxygen originally in the bag is displaced.

The person breathes in and out as normal but there is no oxygen in the air they are breathing. Any environment that contains no oxygen will lead to rapid death.

By way of contrast, the use of a mask (as planned in Alabama) is a ‘closed’ system, in that it relies on a seal between the mask and the person’s face.

If there is air leakage around the person’s face, the method will not work. This is why Exit has long advised against the use of a mask, even if it appears to be tight-fitting.

The risk of air leakage into the mask, once the person’s face changes its shape when unconsciousness occurs, makes it a far too unreliable method of self-deliverance.

With heavy redaction, the Court transcript of 20 December 2023 reads:

As Dr. Philip Nitschke explained, “[t]he use of a sealing facemask has been abandoned” by people willingly using nitrogen or other inert gases to end their lives “because of the significant problems associated with maintaining an air-tight seal,” which were deemed “unsolvable.” (PX B2 at ¶ 5.1; see also PX B7 at ¶ 16 (“The problems identified above were the reason the right to die movement abandoned all use of face masks over a decade ago.”).) A paper from ADOC’s files (“Oklahoma White Paper”), which was prepared for an Oklahoma legislator when that state was considering authorizing nitrogen as a means of execution, confirms that even in the context of assisted suicide using masks to deliver inert gases has been problematic …

For these reasons, Exit and the global DIY right to die movement have advised against the use of a face mask for at least the past 15 years.

I stand by this opinion today.

It was this point of view (based on many years of research and witnessing of elective deaths) that I was called upon to present to the court in Montgomery, Alabama last December.

As part of my preparation for my testimony, I was invited to Holman prison where I got to view and inspect the mask that will be used, should the execution go ahead.

While I am legally not permitted to disclose details about the mask, my experience of lying on the execution guerney and having the lawyer for the State of Alabama strap the mask to my head, has left me horrified at the lengths that the State will go to to try and kill a human being.

The setup is macabre. I can think of no other word for it.

The ‘optics’ of a man lying there, tied to the horizontal tray in the execution room with this mask strapped to his face is simply dreadful. It is undignified. It is cruel. It should never be allowed to happen.

I hope that my involvement in this case will make a difference but who knows. The court is yet to decide if the interim injunction stopping Kenny’s execution will be granted.

As for Kenny, he is a man on the edge. His is anxious and resigned to his fate all at once.

In meeting with him at the prison, I tried to offer him some ray of hope, but that is a hard call given the possible execution that  lies ahead for him.

There are only two people in the US who have been the victims of failed execution attempts by the State. Kenny is one of them.

That alone is enough to give a person PTSD. And it is this PTSD that is the problem.

Will Kenny’s PTSD provoke a reaction of vomiting into the mask?

If this happens he will die choking on his own vomit.

As a medical doctor, it is taken as a given that the human body will always surprise us. There are no guarantees.

Is this a risk the State of Alabama really wants to take?

No civilised society would ever answer that question in the affirmative.

Philip Nitschke

The Netherlands, 6 January 2024


Postscript – Execution using Nitrogen Hypoxia is Doomed to Fail

The 3D-printed Sarco uses nitrogen liquid to create a hypoxic (low oxygen) environment.

The aim of the Sarco has always been to create a dignified yet reliable means of a peaceful elective death.

Death by nitrogen hypoxia can be peaceful and it should always be elective.

Nothing about what the State of Alabama is planning is peaceful.

The forthcoming January 2024 Peaceful Pill eHandbook Essentials Update will address these issues of Nitrogen Hypoxia.