By Rena Abdusalam
ATMORE, AL – David Wilson, an Alabama death-row prisoner, has recently filed a lawsuit against the state’s Department of Corrections, challenging the gas asphyxiation execution of Kenneth Eugene Smith and possible use on Wilson.
“The state of Alabama has a bad track record of botched executions,” stated Wilson’s complaint. “Whereas Alabama is responsible for about 12 percent of all executions, it accounts for more than half of failed and botched executions in the United States. By any metric, the State of Alabama is the least competent state at carrying out executions in this country.”
“Despite that and the many warnings, extensive federal litigation, and international opposition, the State of Alabama engaged in human experimentation on Thursday, Jan. 25, 2024, and executed a man, Mr. Kenneth Smith, by means of a nitrogen gas-mask asphyxiation method that had never been used before in human history,” the lawsuit continued.
State representatives, such as Alabama’s Attorney General, asserted a gas asphyxiation execution would cause Smith to become unconscious within seconds, the complaint claimed.
However, the lawsuit noted five media witnesses present at Smith’s death “recounted a prolonged period of consciousness marked by shaking, struggling, and writhing by Mr. Smith for several minutes after the nitrogen gas started flowing.”
“Marty Roney of the Montgomery Advertiser reported that ‘Kenneth Eugene Smith appeared to convulse and shake vigorously for about four minutes after the nitrogen gas apparently began flowing through his full-face mask in Alabama’s death chamber,’” said the complaint.
The lawsuit filing continues to cite Roney’s article, narrating Smith lost consciousness after two to three minutes, while gasping for air until his last breath.
Also cited in the complaint was Ivana Hrynkiw, who had a similar account and reported, “The gas appeared to start flowing at approximately 7:58 p.m. Smith visibly shook and writhed against the gurney for around two minutes. His arms thrashed against the restraints. He breathed heavily, slightly gasping, for approximately seven more minutes.”
According to Wilson’s lawsuit, Hrynkiw additionally made a public statement following the execution, saying “the Alabama’s Attorney General’s Office has said in prior court filings that they expected (Smith) to lose consciousness pretty quickly after that gas began to flow. But media witnesses saw that Kenneth Smith appeared to be conscious for several minutes…”
The complaint also cited media witnesses Kim Chandler and Ralph Chapoco, who stated the execution took about 22 minutes and that Smith convulsed for two minutes, with an additional seven minutes of heavy breathing.
Lauren Layton, another reporter the complaint quoted, recounted, “Now, from curtain open to curtain close, (the execution) was about 22 minutes. But did he lose consciousness within seconds? No, he didn’t.”
Lee Hedgepeth, a political reporter based in Alabama, was also mentioned in the lawsuit and witnessed the execution.
Hedgepeth corroborated the other witnesses’ accounts, declaring, “So what we saw last night was, you know, a more violent execution that I’ve ever witnessed in the four previous executions that I have been at out here in Alabama.”
“The media outlet The New York Times compiled and reviewed all the media witness accounts, as well as accounts by the families, friends, and supporters of Mr. Smith and Elizabeth Sennett, and concluded that once the nitrogen gas began to flow, Mr. Smith struggled and remained conscious for several minutes,” stated the complaint.
The complaint continued, “Even the victim’s son, Mr. Sennett, described the ‘struggling and jerking and trying to get off that table’ as ‘something I don’t ever want to see again.’
“What the witnesses saw was a far cry from the peaceful and dignified passing the Attorney General represented to the Court and the public prior to the execution, whereby Mr. Smith would be rendered unconscious and unable to feel pain before he died,” the lawsuit declared.
“Instead, he not only remained conscious for a lengthy period of time, but struggled and writhed on the gurney, and gasped for oxygen in obvious distress,” expressed the complaint.
Wilson’s complaint points to decades-long scientific literature, which has demonstrated that the method of gas asphyxiation through a gas-mask is not a humane way to cause a person’s death.
“It should not come as a surprise that no state in this country permitting medical-aid-in-dying authorizes doctors to use asphyxiation to help their patients die. Instead, all states that have legalized medical-aid-in-dying only permit doctors to prescribe lethal drugs to patients who qualify for the procedure,” argued the complaint.
Wilson’s lawsuit even suggests veterinarians are prohibited to use nitrogen asphyxiation for the euthanization of any sort of mammal.
In addition to doctors and veterinarians, the lawsuit advances their argument with international law and its prohibition of using nitrogen gas against human beings.
According to the lawsuit, the United Nations High Commissioner for Human Rights and four United States Special Rapporteurs expressed their concerns regarding Smith’s execution prior to his death.
“The fact is, despite its scientific-sounding name, ‘nitrogen hypoxia’ as a method of execution was not conceived by scientists or doctors, but rather by criminal law professors. Alabama became the first state to use nitrogen gas asphyxiation as a method of execution, in a human experiment that officials botched miserably on Jan. 25, 2024. It cannot be allowed to be repeated,” according to Wilson’s lawsuit.
Wilson was convicted and sentenced to death on Dec. 5, 2007. For almost 14 years, Wilson has petitioned and filed many motions, in which almost all have been denied.
“Plaintiff David Wilson suffers from pulmonary problems, Asperger’s Syndrome (which renders him hyperreactive to tactile input), and light sensitivity and vision problems that mandate eyewear,” the lawsuit noted.
“Mr. Wilson’s medical records demonstrate that he suffers from pulmonary health problems of long date, including tuberculosis and other respiratory difficulties. These are chronic and permanent conditions that constrict the airways in his lungs, making it difficult for him to breathe,” Wilson’s filing explained.
In addition, the plaintiff’s lawsuit mentioned that due to being on the autism spectrum, Wilson experiences “sensory perceptual issues” and “tactical sensory differences.”
Wilson also suffers from “atypically high sensitivity to light and has repeatedly requisitioned permission to wear sunglasses,” according to the lawsuit.
“Mr. Wilson would not be able to wear sunglasses under the full face-mask during any execution and would have to stare straight into the ceiling lights,” explained the lawsuit.
“Even if the state refuses to allow Mr. Wilson to wear sunglasses in the execution chamber, Mr. Wilson wears prescription glasses when there is no strong light. He would not be able to wear those glasses with the mask on either, and therefore would be killed without the opportunity to see his family,” noted the lawsuit.
Wilson filed the complaint, requesting for the enforcement of his constitutional rights under the Eighth Amendment, which prohibits cruel and unusual punishment.
The death-row prisoner petitioned to abstain the utilization of the new gas-mask nitrogen asphyxiation protocol for his execution, as it violates the Eighth Amendment and, with Wilson’s medical conditions, would cause a painful death.
“As evidenced by Mr. Kenneth Smith’s torturous, 22-minute execution, Alabama’s nitrogen asphyxiation protocol carries a substantial risk of causing severe pain and suffering, in violation of the Eighth Amendment,” the lawsuit repeated.
Due to his medical issues, the lawsuit explains there’s a huge possibility that Wilson will “experience severe pain and suffering if Alabama proceeds to execute him by nitrogen asphyxiation,” which also further advances this violation of his Eighth Amendment rights.
For these reasons, Wilson filed his lawsuit after Smith’s death of nitrogen asphyxiation and under the basis of cruel and unusual suffering that the execution method causes. “Grant any further relief as it deems just and proper,” the complaint asks the court.
