“Cruel and unusual” is how critics describe a new, untested method of criminal execution, nitrogen gas, which is set to be administered for the first time in America later this month.  

The United Nations Human Rights Council is pushing to stop Alabama from using a nitrogen hypoxia against a convicted murder, Kenneth Eugene Smith, arguing that it violates an international treaty on torture.

A preacher has also filed suit against Alabama’s plan, which forbids him from administering spiritual support to Mr. Smith in an alleged violation of his religious liberty. The state, meanwhile, argues that the new method is the most humane.

Most American executions are done using lethal doses of a drug called barbiturate, but states have been struggling to obtain it due to a recent European Union restriction on pharmaceutical companies. Some state legislators have looked to impose firing squads in the event they cannot access the necessary materials. Having earned approval from Alabama lawmakers in 2018, nitrogen hypoxia is emerging as the latest solution — but not without pushback.

 “We are concerned that nitrogen hypoxia would result in a painful and humiliating death,” four UN human rights special rapporteurs said in a statement last week. They argued that administering the gas to Mr. Smith would likely violate the UN’s Convention against Torture and other UN agreements to which America is a party, and asked state and federal authorities to halt the execution and any others that would take place in this manner. 

Torture, defined by a Convention which was adopted by the General Assembly in 1984, is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” for purposes including punishment. The UN implores its member states to prevent such acts in any territory and in any circumstance under its jurisdiction, even if a public authority seeks to justify it.

In the case of 58-year-old Mr. Smith, that authority is Alabama. A judge sentenced him to death in 1988 when he was convicted of a murder-for-hire of Elizabeth Sennett at Jefferson County. Alabama authorities previously attempted to execute him in November 2022 using lethal injection, but failed. They then turned to nitrogen gas, authorized as part of the state’s “Executions’ Protocol,” which proponents say is more humane.

Mr. Smith’s lawyers, though, are arguing that the gassing protocol could betray the prohibition against “cruel and unusual punishments” in the eighth amendment of the Constitution. While nitrogen comprises 78 percent of the air humans inhale, inmates would breathe it in without oxygen, causing their bodies to stop functioning. Some reports suggest that recipients become unconscious after a few breaths and die within minutes.

“I know in a pure nitrogen environment you pass out,” an Alabama state senator, Trip Pittman, who supported the 2018 bill, said in an interview with the Alabama Reflector. “It is instantaneous. You basically black out. There is no time for pain or anything else.”

Critics, however, say the method is not, in fact, painless, and that the guidelines for authorities to conduct it are unclear. One death penalty analyst, and Fordham Law School professor, Deborah Denno, told Newsweek that Alabama has “a vague, sloppy, dangerous, and unjustifiably deficient protocol.” The court filing of Alabama’s execution protocol for nitrogen hypoxia is heavily redacted, lacking details on how staff should take up the procedure on Mr. Smith. 

Concerns about religious rights are also being voiced. Alabama’s safety protocols for nitrogen executions forbid spiritual advisers from being in the room at the time the gas is administered unless they sign a waiver beforehand acknowledging the potential danger of being there. Reverend Jeffrey Hood, a spiritual adviser to death row inmates, is challenging that plan in a lawsuit.

Mr. Hood says that Alabama is infringing upon the right of an inmate to have a spiritual adviser present during his execution, a protection previously affirmed by the Supreme Court. Mr. Hood, who works with the group that seeks to abolish the death penalty, Death Penalty Action, claims in his lawsuit that the protocol “presents potentially significant dangers to his own life, and violates the religious liberties of both himself and Mr. Smith.”

Mr. Smith is scheduled to be executed on January 25. Press contacts for the United Nations Human Rights Council did not immediately respond to the Sun’s requests for comment.