While the death penalty has been abolished in 23 states and Washington, DC, other states are doubling down on the barbaric practice of capital punishment. Idaho wants to bring back firing squads, and now the state of Alabama is pushing to become the first state to execute a death row inmate, Kenneth Smith, by forcing him to inhale pure nitrogen. Why are these states seeking such cruel execution methods? Alabama-based investigative journalist Lee Hedgepeth joins Rattling the Bars.
Studio Production: David Hebden, Cameron Granadino
Transcript
Mansa Musa: Thank you for joining me for this edition of Rattling the Bars. I’m your host, Mansa Musa.
Imagine witnessing someone being smothered to death with a pillow. The person being smothered has been convicted of a capital offense and has a sentence of death and this is the state’s form of execution; He’s being smothered to death after other forms of execution were unsuccessful. Even after he’s dead, they continue to smother him for 15 more minutes. This will be the form of execution of Alabama death row prisoner, Kenneth Smith. But instead of a pillow, the state of Alabama will use nitrogen hypoxia gas. Would this be considered cruel? Would this be considered unusual? The Eighth Amendment of the US Constitution protects criminal defenders from cruel and unusual punishment.
Joining me to talk about the case of Kenneth Smith and Alabama’s execution method is investigative reporter, Lee Hedgepeth. Welcome to Rattling the Bars, Lee.
Lee Hedgepeth: Thank you so much for having me.
Mansa Musa: Lee, tell our audience a little bit about yourself before we unpack the case of Kenneth Smith.
Lee Hedgepeth: Sure. So my name’s Lee Hedgepeth. I’m an investigative reporter. I write in Tread which is a newsletter of investigative journalism based here in Alabama and I’ve covered issues around criminal justice and the death penalty for around a decade now. I’ve been there at the prison, Holman Correctional, down toward Mobile County in the south part of the state, about eight times for different executions and have witnessed four executions. The death penalty is an issue that’s really important to me and something that journalists should be covering all across the country.
Mansa Musa: Okay. And the case of Kenneth Smith really epitomized the insanity associated with the death penalty. Correct me if I’m wrong, but they attempted to execute Kenneth Smith before with lethal injection and it was unsuccessful. After that, because they couldn’t get the chemicals for lethal injection, the state of Alabama put the death penalty on hold and now they came up with this new form of execution which is some form of gas. And you can explain that a little bit more but the point that we want to unpack is how did this particular methodology come about?
Lee Hedgepeth: Sure. So for years now, lethal injection has become more and more difficult for states to carry out for a variety of reasons: One of which you pointed out, is the difficulty in getting the drugs. Most of the lethal injection protocols that states use in these executions call for either one or multiple drugs that are made by, usually, European drug manufacturers. Well, no country in Europe has the death penalty and Europe has laws against such companies providing the chemicals and so, a lot of these companies have said look, we’re not going to provide these chemicals for execution. So that’s become a challenge for states that continue to pursue the death penalty. We saw Mississippi, for example, The FDA rated Mississippi a few years ago and took some of the drugs they had and said you can’t use street drugs, effectively, to execute people.
Here in Alabama, we’ve had the same difficulties and we had three executions back to back, beginning with the execution of a man named Joe Nathan James, that were botched. The first one, Joe Nathan James’ execution, they ended up performing what’s called a cutdown which is a rudimentary procedure where if they can’t gain access to the inmate’s veins, they’ll cut and try to get to the inmate’s veins that way, like using a scalpel. So that was what was done in Joe Nathan James’s case. Alabama, for multiple executions, has had difficulty in accessing people’s veins.
We don’t know the medical background of the people who are on the execution team. That’s one thing that I’ve been trying to get more information on but the codes of ethics for nurses and for doctors require that they don’t participate in execution. So these folks that are trying to access the veins of inmates, are going against the code of ethics of their own profession by participating in this process. And so, Alabama’s had difficulty. Twice, Alabama had to abandon their attempts to execute folks because they couldn’t access the veins. And one of those cases was the case of Kenny Smith.
Kenny Smith was convicted of a murder that occurred in 1988. So he’s served decades now for this crime, already been punished in that way. And Alabama attempts to execute him via lethal injection and that’s unsuccessful; They aren’t able to access his vein. They try for hours actually to access his vein. So if you can imagine the psychological torture of thinking that you’re going to be executed, at one point in a court filing, he describes the process of them strapping him down in the execution chamber of these members of the execution team, doing things like slapping his neck to try to gain access to things wherever they could. So you can imagine the torturous situation this is in.
And so, they were unsuccessful in that attempt. So eventually before midnight when the execution warrants fire, they abandoned their attempt to execute him. And now we’re a few months later and Alabama has decided to move to this new method of execution called nitrogen hypoxia. So this method of execution has never been tested before and has never been used by the government anywhere in the world. So effectively, the method is they will put a mask on the condemned individual and they will slowly take the oxygen out, leaving only nitrogen for the person to breathe. And that’ll suffocate the person and lead to their death. This hasn’t been tested anywhere but Alabama says if we can’t successfully lethally inject people, this is the route that we’re going to take.
Mansa Musa: When you mentioned the protocol… I was reading that because they have redacted so much of the documentation relative to the methodology of this particular form of execution, there is a lot of uncertainty as to the effect. And here we are talking about cruel and unusual punishment. Regardless of what we think should happen, or if we are pro-death penalty or not, it’s still a standard reason that the execution has to be, for lack of a better word, humane in regards to the person that’s being executed. Have they been able to, or have you been able to glean from your investigation, the problems associated with this particular form of execution as gas?
Lee Hedgepeth: Yeah. Alabama historically has not provided any information, publicly, related to its execution protocols. So when they do release them, like you mentioned, they’re heavily redacted documents that don’t provide a perfect picture of what they plan to happen. And we know, of course, Alabama’s plans don’t always come to fruition when it comes to these things; They have a checkered history. But what we do know is that nitrogen is a very dangerous gas. Viewers may think nitrogen is in the air we breathe already, so why is it a problem? Well, the type of nitrogen that’s used is compressed nitrogen. It has to be put in a tank so they can use it as they want to in these executions. Those types of nitrogen that are in tanks, compressed nitrogen, can easily fill up a room; It’s an odorless gas, you can’t smell it, you can’t see it, and it can quickly fill up a room.
There are hundreds and hundreds of cases around the country where there are workplaces where nitrogen is used frequently; Places like poultry plants and things like that. There was a case in Georgia, I believe a few years back, where there was a nitrogen leak. These workers who worked in this poultry plant – A lot of Hispanic workers were working in the poultry plant – Couldn’t see nitrogen and couldn’t smell the nitrogen but there was a leak. They all start passing out while other folks don’t realize what’s happening. And they see folks passing out and the natural reaction is to go and help. So when they go and help, they begin to pass out too.
This is a pattern that we see in these nitrogen workplace accidents is that when the rescuers come to help people, they also are susceptible to the same nitrogen that the folks who passed out were. So nitrogen is a very dangerous chemical. And what we haven’t been able to see from Alabama is what is the process that you’re using to protect, not only the individuals in the execution chamber, the members of the press who were there, the family members both of the condemned inmate and of the victim’s family who are present as well. But what about the whole population of the prison?
Mansa Musa: Prison population. Right.
Lee Hedgepeth: Right. All of these tanks have to be stored on-site. What if there is a puncture like there was in the Georgia facility? What if there is some accident where this colorless, odorless, gas is harming not only the people that Alabama is targeting, but everyone else too?
Mansa Musa: And we already know, based on your previous observation, that the people that were administering the injection, would get their training off the back of a matchbook. Or if they are in the profession, they’re violating their oath to not be a part of the execution but stand the reason that they’re not in the medical field because you can’t find a vein. But now we are looking at how you train these people to administer this gas because like you say, they strap a mask on. Who’s to say that the mask is not leaking, the mask is covering the entire face? And because if we can’t smell it we don’t have a way of detecting it. You go in there to execute one person under the pretense that he committed a crime or capital offense and wind up killing or hospitalizing eight or nine people. What has the Supreme Court said about this particular methodology, this nitrogen gas?
Lee Hedgepeth: The Supreme Court hasn’t weighed in on this particular methodology before. One of the things the Supreme Court has said is that if a person who’s on death row is challenging their method of execution, and this in itself seems cruel to me, but the Supreme Court has said you have to have an alternate method to propose. So you have to tell the court, I don’t want you to kill me this way. Here’s the way that I propose you kill me. Which seems in itself to be cruel to me. But that’s the Supreme Court precedent. The Supreme Court hasn’t weighed in on this methodology but as we all know, with the six to three majority of the Supreme Court –
Mansa Musa: Right. We already know how it’s going to go. And I thought in my mind that once you have a failed attempt of execution, shouldn’t the person be exonerated? If you can’t kill me, shouldn’t I be given the benefit? Or is that being idealistic?
Lee Hedgepeth: Well, there’s a certain amount of idealism certainly there. But one of the things that is certainly the case here is there are very few execution survivors in America, if anywhere. So typically, when states try to execute someone, even if they have to try and try over and over again for hours, they’re eventually, quote, unquote, “successful” in killing the person. This is an extremely rare case in the sense that they weren’t able to… They tried to execute him and they didn’t. One of the strongest challenges that Mr. Smith may have when it comes to getting courts to side with him in an appeal would be challenging, trying to execute him for a second time as cruel and unusual. I can’t think of anything more unusual than trying to execute somebody for a second time.
Mansa Musa: When I was looking up the amendment, I told you when they came out with the Furman case. The Furman case was a case that they used to really examine the death penalty. They did a historical analysis of how they were utilizing execution, how they were beheading people, how they were putting bodies up on stakes, putting their heads… The cruel reality was something beyond my personal imagination. But where are we at as far as Kenneth Smith? In terms of the process, he’s waiting for what? He’s waiting for the court to decide whether or not to stay or to go forward.
Lee Hedgepeth: Right now, the Attorney General’s office here in Alabama, the Alabama Attorney General is very bloodthirsty when it comes to capital punishment and has challenged even the governor in the state to be more in favor of the death penalty. At this point, they’ve announced that they will be asking for this execution date using nitrogen hypoxia. That request has gone to the Alabama Supreme Court and the Alabama Supreme Court, to my knowledge, has never rejected a request for an execution date. So that will likely happen in the coming days and then once that happens, Alabama’s governor will decide the particular time and the timeframe of the execution.
Mansa Musa: I read a book about an individual who was on death row, he was in Alabama, called The Sun Never Shines. He was saying that’s when they had the electric chair and that he was on the tier and the close proximity of the electric chair to the tier was such that whenever they execute somebody, you had the stench and the whole atmosphere changed, in terms of a more bleak light type of atmosphere. Where’s Kenneth Smith housed right now?
Lee Hedgepeth: Kenny Smith, along with all of the male folks who are on death row, are housed in a prison called Holman Correctional Facility which is in Atmore, Alabama in the southern part of the state. Up until maybe the week of his execution, he’ll be housed in the same death row sale that he’s been in for his entire detention. You mentioned the impact on other folks when a person’s executed; One of the things that has struck me in covering executions is when the journalists go into the prison, we can see all of the windows of folks who are on death row. And they use the windows as a method of communication. So they’ll put signs up.
I was there for the execution of Joe Nathan James a few years ago and the family of the victim in that case was opposed to his execution. So in a lot of these cases, Alabama’s officials and other state officials will say, we’re doing this for the victim. So in this case, the daughters of the victim and the brother of the victim said, please don’t execute this person. Don’t do it in our name. When I went to witness the execution, we went into the execution chamber and we could see these windows of death row and in one of the windows, there was a sign that said the family is against it. This is a murder.
For a lot of us obviously, the most important thing is the cruelty to Kenneth Smith in this case, of them trying to execute him again. But it’s also important to think about the impact that this trauma has, not only on him but on all of the folks on death row when they see the state trying, again and again, to execute the same person in such a seemingly cruel and unusual manner in violation of the Constitution that protects all of us, not only those of us who aren’t on death row.
Mansa Musa: And his co-defendant was executed already?
Lee Hedgepeth: Correct. One of –
Mansa Musa: Go ahead.
Lee Hedgepeth: – Sure. One of the things to note in this case though, the murder was of a woman named Liz Sennett, and her husband was the person who contracted the murder. He was a pastor and he killed himself after the plot came to light. The person who initially was responsible for all of this took his own life. So there’s no sense of closure or justice in that way. And all of these additional lives that are being impacted afterward are definitely something to think about.
Mansa Musa: And they have a tendency to do that, to pour it on when they get an opportunity. But in terms of Kenneth Smith, have you been able to visit him? Or you’re not allowed?
Lee Hedgepeth: So I haven’t been able to visit him in person. I have been able to speak with him off and on. I spoke with him after the state tried to execute him and one of the things that he said was, the state is going to regret having let me out of that room. One of the things that’s important to Kenny is to make sure that any legal challenges or any legacy that he has is a legacy that helps those folks who are also on death row and a legacy that challenges Alabama’s willingness to execute people in cruel and unusual ways.
Mansa Musa: In that regard, I noticed that most states have gotten away from the death penalty but Alabama, as you say, is entranced when it comes to this. And we have an attorney general down there that that’s his political platform: I kill people without remorse and I kill people with methodologies that are cruel and unusual and barbaric. But killed on my will. Is that his mantra?
Lee Hedgepeth: Yeah. It seems to me as though the attorney general here is angling for governor and that will be the platform that he will run on.
Mansa Musa: And as Kenneth – I heard what you said, in terms of where your state of mind is, as far as what do you want to come out of this. But after the failed attempts, I’m quite sure he’s been traumatized. And in this regard, does the institution provide any mental healthcare for him? Because, in their mind, they’re like, well, you going to get killed anyway, so…
Lee Hedgepeth: Yeah. I’ve spoken to a lot of people about this and I certainly don’t think he’s receiving the type of therapy that he would need in the wake of such a traumatic event as the state trying to end your life. One of the things that I’ve talked to other folks about is that other folks who know him, who knew him before, and who know him now who are on death row say he seems to be in a trance. It’s surreal surviving and execution.
And one of the things that I’ve asked the Alabama Department of Corrections about and haven’t heard back about is that the same individuals that were the ones who tried to execute him, the officials, the guards that were involved in that process, that were there in that room, are still people that are around him every day. So for Kenny, you can imagine how traumatizing it is to see your executioner come to give you lunch every day or whatever the case may be. So that’s something that we should also think about as the impact: The retraumatization that’s happening when he sees these staff members who participated in the first attempted execution.
Mansa Musa: And this is the very thing that the Eighth Amendment is supposed to protect against. This is the cruel reality that they talk about. Cruel and there was your point, that you attempted execution. Not only that but then have the very people be back in an environment where you’re being revisited by all the people who are involved in the process. You’re not getting any mental healthcare because of your circumstances that you are on death row, therefore you shouldn’t. Your mentality or your state of mind is of no importance because in the state of Alabama, in particular, they already got that set up that, well, we are going to execute you. You are on death row. And how long has he been on death row? Since the ’80s?
Lee Hedgepeth: Yeah. So the murder occurred in ’88. He was convicted in the early ’90s. So he is been on death row for three decades or more, at this point.
Mansa Musa: Yeah, he’s been on death row for 30 or more years. And then after all that they failed to execute him. Where’s the humanity and where’s the justification in that? What about the victims, the family members of the deceased? Where are they at?
Lee Hedgepeth: We haven’t heard from the family members. That’s something that is very important, is to see where they stand. So far, Elizabeth’s family hasn’t been willing to speak with the press.
Mansa Musa: Right. And that’s mind-boggling because, as you say, the husband was the principal involved and he took his life. So that’s questionable as to why he did what he did, in terms of the whole thing. But going forward, what do you want our audience to know about this process, this methodology?
Lee Hedgepeth: Sure. One of the things that are the most important for people to know is that this method of execution, which they call nitrogen hypoxia but I call nitrogen suffocation because that’s what it is, a method that has never been tested before; Not by Russia, not by North Korea, not by any communist government you’ve ever heard of.
This is a method that is completely untested. And I ask folks to read the Eighth Amendment that bans cruel and unusual punishment in the US, regardless of whether you’ve committed a crime or not, and think to yourself, is this method of execution taking away the oxygen that someone breathes? Do you find that to be cruel or unusual? So I ask folks to ask themselves that question. And if they feel like maybe it is a cruel and unusual method, reach out to organizations like Project Hope to Abolish the Death Penalty here in Alabama, or nonprofit organizations, wherever you are that are involved with the death penalty and get involved on the issues, vote on issues like this.
We’re talking about state-level death penalty cases here but there’s a federal death row too. And President Biden has the power right now, today, with a stroke of the pen, to commute every single one of those death sentences and end the possibility that someone like Trump gets in office and does what he did at the end of his last term, which executes people over and over again at the end of the term. So if you care about the death penalty, if you are opposed to the death penalty, write to somebody like Biden and say, look, solve this problem today because that’s something that’s within his power.
Mansa Musa: How can our audience get in touch with you all and stay on top of what you’re doing?
Lee Hedgepeth: Sure. You can follow me on Twitter, my Twitter handle is @lee_hedgepeth. You can also go to treadbylee.com. So that’s the newsletter I have, and that’s T-R-E-A-D, by, B-Y, L-E-E, lee.com.
Mansa Musa: Okay. Thank you, Lee. And you really rattled the bars today on nitrogen suffocation, and this is exactly what it is. And we want our audience to really look at this because, at the end of the day, it’s the taxpayers paying for this. And so, you have to ask yourself as a taxpayer, am I putting my money into someone being suffocated to death? Take all the oxygen out of them and let them die. I’m suffocating. There’s no humanity associated with it, it’s torturous. There’s no way of looking at it other than that. And the only reason why we are doing it is because we’re in a state where we have an Attorney General who’s a bloodsucker and he’s got blood on his mind. He’s got blood on his hands. And Kenneth Smith is a victim of this process.
We thank you for enlightening our audience on this process and we ask our audience to be mindful of this reporting that we do because you’re only going to get this news on The Real News Network. You’re not going to get this news anywhere else and we’re not telling you how you should weigh in on the death penalty or not; We’re asking you to weigh in on what is humane and what isn’t humane. We’re asking you to look at your humanity and see if your humanity can be measured up against what’s going on in Alabama with this nitrogen suffocation. That’s all it is. And we’re asking that you continue to support The Real News and Rattling the Bars because it’s the only way you’re going to get this information. It’s the only way you’re going to be educated about this process. Thank you very much, Lee. Thank you for joining us.
Lee Hedgepeth: Thank you so much for talking about this important topic.
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