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GUEST COMMENTARY - As we prepare to usher in 2024, the outlook on Alabama’s administration of the death penalty holds many terrible knowns, and an even greater number of grim unknowns.
At the top of any capital punishment-watcher’s list: Is Alabama really going to move forward with the first state-sanctioned nitrogen gassing execution in US history?
If all goes according to Montgomery’s plan, Kenneth Smith will serve as a test subject for this novel form of execution. Smith — a man sentenced to death for a 1988 murder-for-hire scheme, even though 11 jurors recommended a sentence of life without parole — survived a botched execution attempt in Nov. 2022.
Last year, I ventured: “[P]utting aside gassing, perhaps in the coming year Alabama will hire a new contingent of anonymous, cold-hearted executioners who will instead concentrate on implementing a ‘new and improved’ lethal injection protocol—as Dr. Joel Zivot, an anesthesiologist by training, recently prognosticated in an essay for Slate—a protocol that will ‘eliminate the arms as a location for the IV,’ going instead straight ‘to the neck or genital region only, from now on?’”
A frequent, fervid critic of Alabama’s death penalty regime in his own right and my sometimes collaborator in the same, Zivot is working overtime to sound the alarm over Smith’s case. Working with Birmingham City School of Law Professor Jon Yorke, Zivot recently submitted a complaint to a panel of UN experts. In a blog post announcing the complaint, Zivot and Yorke wrote: “even though Mr Smith received an unfair trial, and he has already been the victim of a botched and failed execution, the State still wants to kill him.”
Zivot told NPR nitrogen gas exposure can cause “severe hyperventilation [which] can lead to a stroke. So there is some injury that could happen to you … just being in proximity of that. It’s all very concerning. They’re not being realistic about what exactly is at stake here.”
This is a core issue that I’ve raised in the past—an issue that stands to impact members of the clergy, the press, and practically anyone in the vicinity of the execution. It’ll be a damn shame if any of that odorless and invisible—but nevertheless noxious and lethal—gas escapes Alabama’s new gas chamber (into the claustrophobic confines of Holman prison, endangering everyone in the environs).
And I’m not alone in this. Columbia University law professor Bernard Harcourt echoed Zivot’s sentiments in an essay in The New York Times in September, writing: “There are a lot of things that could go wrong. Should the mask not fit properly and oxygen seep in, the person may be left gasping in agony for air and suffer suffocation. This could result in severe brain damage rather than death.”
But you know I don’t want this column to be all doom and gloom. Because, like last year, I insist a new year offers us all new beginnings—a chance to correct wicked and immoral behaviors, up to and including execution.
And it’s because of that spirit of hope that I recently connected Zivot with Representative Chris England, a long-time advocate for justice and prison reform in Alabama; a Democrat from Tuscaloosa, England tried to advance death penalty and parole reform in 2023, but he was overwhelmingly stymied by Republicans, most of whom claim to be pro-life, and yet defend the killing of folks to prove killing’s wrong.
I believe, perhaps naively, that between Zivot, England, and all the many other good men and women devoted to dissuading Alabamians—and all of us collectively as citizens—from this ignoble nitrogen-gassing inauguration that’s scheduled, we can yet avert crisis.
At the outset of Proverbs, King Solomon declares: “Wisdom calls aloud in the street, she raised her voice in the public squares; at the head of the noisy streets she cries out, in the gateways of the city she makes her speech: How long will you simple ones love your simple ways? How long will mockers delight in mockery and fools hate knowledge?”
King Solomon would pull the plug on this pitiful plan were he here in the flesh, pulling no punches, as Cantor Michael Zoosman and I explained in our recent piece entitled “Jews Must Speak Out Against Alabama’s Planned Nitrogen-Gassing Executions.”
The problem that needs to be acknowledged, to quote the great Fyodor Dostoevsky’s “Notes from Underground,” is: “[M]an is so addicted to systems and to abstract conclusions that he is prepared deliberately to distort the truth, to close his eyes and ears, but justify his logic at all cost.” And “man may yet come to find pleasure in the spilling of blood. Indeed, this has already happened.”
Note: This piece originally appeared on Jurist: Echoes of Dostoevsky: An Appeal Against Alabama’s Deadly Experiment. For Proper citation: Stephen A. Cooper, “Echoes of Dostoevsky: An Appeal Against Alabama’s Deadly Experiment,” Jurist, December 28, 2023.
(Stephen Cooper is a former D.C. public. defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California. Follow him on “X”/Twitter @SteveCooperEsq)
