Does a new U.S. execution method have Canadian link? What’s behind concerns

Advocates say masks made by the subsidiary of a Quebec-based company are being used for execution in the United States. Alabama’s lethal injection chamber at Holman Correctional Facility in Atmore, Ala., is pictured on Oct. 7, 2002. Kenneth Smith, 58, is scheduled to be executed Jan. 25, 2024, at a south Alabama prison by nitrogen gas, a method that has never been used to put a person to death.

A convicted murderer in Alabama is set to be executed on Thursday using a novel method a U.S.-based advocacy organization says appears to have a Canadian connection.

Worth Rises, a non-profit that is “dedicated to dismantling the prison industry and ending the exploitation of those it touches,” published a statement saying it has established the link in Kenneth Eugene Smith’s execution.

The 58-year-old convicted murderer is set to die by nitrogen hypoxia — an untested method that, if successful, will be the first new method of execution since lethal injection was introduced in 1982.

“Over the past decade, the growing inaccessibility of lethal injection drugs and public outrage over brutally botched executions have moved some states to end or suspend the death penalty. But others, like Alabama, have begun exploring new execution protocols instead, including nitrogen suffocation,” Worth Rises says in a petition on its website.

“It’s appalling on its face, but especially since nitrogen suffocation is outlawed in the state for animal euthanasia. In fact, the United Nations warned that this execution method violates international human rights law.”

Nitrogen hypoxia execution would cause death by forcing the inmate to breathe pure nitrogen, depriving them of the oxygen needed to maintain bodily functions.

Nitrogen, which is a colourless and odourless gas, makes up 78 per cent of the air inhaled by humans and is harmless when breathed with proper levels of oxygen.

The theory behind nitrogen hypoxia is that changing the composition of the air to 100 per cent nitrogen will cause a person to lose consciousness, and then die from lack of oxygen.

Much of what is recorded in medical journals about death from nitrogen exposure comes from industrial accidents — where nitrogen leaks or mix-ups have killed workers — and suicide attempts.

As a mode of mammal euthanasia, nitrogen asphyxiation is acceptable only for pigs, according to the American Veterinary Medical Association. Other species should first be rendered unconscious “via an acceptable method,” the 2020 guidelines state.

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A group of UN experts spoke out against the execution method earlier this month, warning Smith could experience grave suffering during the process.

They said experimental executions by gas asphyxiation — such as nitrogen hypoxia — could likely violate the prohibition on torture and other cruel, inhuman or degrading punishment.

U.S. authorities have found it increasingly difficult to obtain the chemicals needed for lethal injection.

Pharmaceutical companies have been banning the use of their products for that purpose, prompting several states, including Oklahoma and Mississippi, to authorize nitrogen gas as a way to execute inmates on death row.

Alabama became the third state to approve the use of nitrogen in 2018.

Smith survived a botched lethal injection attempt in 2022; he was one of two men convicted of the 1988 murder-for-hire of a preacher’s wife. He is now set to be the first person in the U.S. to be put to death using this new method.

After Smith is strapped to the gurney in the execution chamber, the state said in a court filing that it will place a “NIOSH-approved Type-C full facepiece supplied air respirator” — a type of mask typically used in industrial settings to deliver life-preserving oxygen — over his face.

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The warden will then read the death warrant and ask Smith if he has any last words before activating “the nitrogen hypoxia system” from another room.

The mask fitted over Smith’s face will supply only pure nitrogen, cutting off all oxygen. The gas will be administered for at least 15 minutes or “five minutes following a flatline indication on the EKG, whichever is longer,” according to the state protocol.

The Alabama attorney general’s office told a federal judge that the nitrogen gas will “cause unconsciousness within seconds, and cause death within minutes.”

Smith’s lawyers fear that the mask will not properly seal against his face, allowing oxygen to seep in, delaying or even averting the moment of unconsciousness, but risking serious brain injury. They have proposed Alabama instead uses a hood pre-filled with pure nitrogen, to be plunged over his head, or else use a firing squad.

Worth Rises said the mask that will be used is made by Allegro Industries, a subsidiary of Quebec-based Walter Surface Technologies, which is partly owned by Toronto private equity firm Onex Corp.

Worth Rises’ petition calls on Allegro to pull its mask, saying that the “death penalty is unethical” and that “profiting off of it is morally incomprehensible.”

The companies did not return comment requests by publication time from Global News. However, Stéphanie Boucher, a spokesperson for Walter Surface Technologies, told Reuters on Wednesday it was “not prepared to make any sort of statement.”

Dana Floberg, director of corporate campaigns at Worth Rises, told Global News the group learned about Allegro’s product being used by several “reliable sources” whose identities the group is protecting “from any retaliation.”

She said Alabama is “extremely secretive” about the suppliers it plans to use for the execution. A spokesperson for Alabama’s correctional service did not return Global News’ request for comment by publication time.

“In this case, we expect there is no contract — most likely Alabama was able to buy the gas mask off-the-shelf. It’s very possible that Allegro Industries and its Canadian parent company and investor were unaware their product was set to be used in the execution until advocates and journalists began asking questions,” Floberg said in an email.

“That said, we first contacted them with our request last Thursday and they’ve now received thousands of emails asking them to stop their mask from being used in Smith’s execution, so they certainly know about it now.”

— with files from The Canadian Press, The Associated Press and Reuters