Mengele-Like Logic Underpins Alabama’s Plan to Gas a Man to Death Commentary
Mengele-Like Logic Underpins Alabama’s Plan to Gas a Man to Death

Barring the unlikely success of last-minute litigation, today, at 6 p.m. CST, Kenneth Eugene Smith is scheduled to become the first person in history to be executed by forced nitrogen gas inhalation.

In Smith’s final minutes, personnel at the William C. Holman Correctional Facility in Atmore, Alabama will strap an industrial-grade mask to his face. Secured tightly by a five-point harness system; the mask will cover the entirety of Smith’s face including his eyes, nose, mouth, and chin. Before nitrogen begins to flow into the mask, Smith’s heart will be beating. Despite efforts by Alabama correctional authorities to dehumanize him, Smith is, after all, a man, and nothing, nothing can mask this. Nothing can hide, nothing will erase, the horror and heartlessness of a country condoning — under the color of law — this method of execution.

Nearby, a wall-mounted monitor will display the percentage of oxygen in the air — a screen that will be more scrutinized than the game clock of a tightly contested Alabama football game. Because more will be on the line than school pride and “Roll Tide.”

If this abomination goes forward, if we become a nation that adopts gassing as an acceptable and constitutional way to kill fellow human beings, our collective morality will be irremediably altered. In this regard, the United States will lose its right to claim clear moral superiority over Nazi Germany, where six million people — including my great-grandmother — were killed, many of them by gassing, because a group of men decided their identity rendered them subhuman. (Nazi ideologue Alfred Rosenberg said in 1923: “The Jew stands in our history as our metaphysical opposite.” And “As a result, the Jew faces the abyss.”)

It should be an uncontroversial statement that all humans deserve dignity and respect for fundamental human rights under the rule of law.

But apparently, US District Judge R. Austin Huffaker Jr. disagrees.

In an unconscionable opinion filed Jan. 10, an opinion littered with circular logic and faulty reasoning, Huffaker approved Smith’s gassing because, in the same way things like popcorn and electric cars were once considered novel: “Execution by nitrogen hypoxia is unusual because it’s novel.”  Huffaker, of course, is not willing to take a test drive in Alabama’s bespoke gas mask, but assures the public he has fully inspected the mask apparatus, and he thinks things ought to work out fine; at a bare minimum: It’ll be good enough for government work. (This depressing theme also permeates the nonsensical concurrence of Judge Charles Wilson of the US Court of Appeals for the Eleventh Circuit; green-lighting Smith’s gassing, Wilson nevertheless allows: “Smith may not be constitutionally guaranteed a painless death, but I have concerns that these circumstances may rise to a cruel and unusual execution.”)

Why worry about Dr. Robert Jason Yong, an anesthesiologist at Harvard Medical School who testified before Huffaker: “low oxygen can result in nausea and vomiting, creating a risk of choking on aspirated vomit,” and when “a person is exposed to less than 100% nitrogen, there is a risk they could experience the sensation of suffocation or be left in a vegetative state instead of dying”? (Although it wasn’t part of the evidence before Huffaker, consider also “Alabama’s Nitrogen Gas Execution Will Be Cruel and Unusual Punishment,” which I co-published recently with Dr. Joel Zivot, a practicing physician in anesthesiology and intensive care medicine.)

Apparently untroubled and undaunted by this unequivocally blunt, horrific medical assessment, Huffaker, in what I believe will go down in history as a Mengele-esque juridical conclusion, minimizes the risks identified by Yong and other eminent scientific, legal, and ethical minds — risks not only to Smith but to everyone in the crowded confines of Holman prison — because: “Yong testified that there is ‘not an abundant body of literature’ or case reports to allow for concrete scientific conclusions about what will happen to a person subject to the current protocol.”

Empty of empathy and devoid of sound reason in my view, Huffaker’s decision hinges on the fact humans have never gassed humans to death with nitrogen before; his own inspection of the mask; surreal and despicable video footage of six assistant attorney generals (AAGs) from Alabama donning the mask in the execution chamber “while also breathing and speaking;” and testimony in opposition to Yong from Dr. Joseph Antognini.

Antognini is an anesthesiologist and professor at the University of California, Davis, who, in 2022, The Intercept’s Liliana Segura wrote “is perhaps best known for lending his expertise to Donald Trump’s Justice Department during its federal execution spree.” Segura observed that after John Grant was executed by lethal injection in Oklahoma, an execution Antognini attended, and after Grant was observed to convulse violently and vomit on the gurney, Antognini nevertheless “testified Grant’s execution had gone smoothly.”

Writing about racism in the first stanza of his poem “We Wear the Mask,” Paul Laurence Dunbar wrote:

We wear the mask that grins and lies

It hides our cheeks and shades our eyes

This debt we pay to human guile

With torn and bleeding hearts we smile

And mouth with myriad subtleties.

Judge Huffaker, Antognini, Alabama, and the AAGs who modeled the masks are leading us down a path of historical shame. Sensing this, too, in her dissent, Eleventh Circuit Judge Jill Pryor wrote: “The cost, I fear, will be Mr. Smith’s human dignity, and ours.”

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

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