On January 25, the state of Alabama will attempt to execute Kenneth Smith using nitrogen hypoxia, forcing him to inhale pure nitrogen through a mask until he suffocates. This will be the first time in United States history that nitrogen gas has ever been used to execute a person.

Earlier this month, United Nations human rights experts warned that the untested execution method might result in a painful and humiliating death. Moreover, it is likely to constitute torture, violating international human rights treaties ratified by the U.S. Last week, the U.N. High Commissioner for Human Rights, Volker Türk, urged Alabama state authorities to cancel the execution.

Veterinary scientists, who have carried out laboratory studies on animals, have even largely ruled nitrogen gas out as a euthanasia method due to ethical concerns. Authorities in the U.S. and Europe have issued guidelines discouraging its use for most mammals, citing potential distress, panic, and seizure-like behavior.

Mr. Smith shouldn’t even be on death row. In 1996, a jury of his peers voted 11-1 for life in prison for his role in a 1988 killing. However, the sentencing judge imposed the death penalty anyway. If Mr. Smith were tried today, that could not happen, as Alabama no longer permits a judge to override a jury’s decision to sentence someone to life without parole.

If the state proceeds, it will be Alabama’s second attempt to execute Mr. Smith. In 2022, the Alabama Department of Corrections failed to find a suitable vein during a lethal injection attempt, calling it off after hours of needle insertions.

Attempting to kill Mr. Smith, or any other person, by nitrogen gas is cruel and inhumane. Plans to do so should be abandoned for those reasons alone – but there are others. Nitrogen gas presents a grave danger to prison staff, incarcerated people, and the public. The Alabama Department of Corrections is aware of the risks, evident in requiring Mr. Smith’s spiritual adviser to sign a waiver acknowledging he could be at risk of gas exposure if he chooses to be with Mr. Smith at the execution.

A recent tragedy at a Gainesville, Georgia poultry plant underscores the dangers of nitrogen gas. Following a leak that filled a freezer room, five workers entering it collapsed and died. A sixth worker was pronounced dead at the hospital. After evacuating 130 workers, an additional 13 people, including four first responders in safety gear, required hospitalization and intensive care.

The tragedy in Georgia is no outlier. The U.S. Chemical Safety Board reports an annual average of 8 deaths and 5 injuries from nitrogen exposure. History, science, and common sense tell us that storing and using nitrogen in Alabama prisons, or elsewhere, is a ticking time bomb. The question isn’t whether nitrogen gas will kill staff and incarcerated people; the question is when.

Governor Kay Ivey has the authority to stop Mr. Smith’s execution by nitrogen gas; or any other method proposed. And she must exercise that power.

But, we must also abolish the death penalty in Alabama and in the U.S. entirely. The justifications for ending it go beyond the cruel, dangerous, and tortuous methods employed. It’s a barbaric practice that too often condemns wrongly-convicted individuals to die and disproportionately kills people of color, people with low-income, people with intellectual disability, people living with mental illness, and others who are over-targeted for arrest and incarceration.

The U.S. must stop inventing new and more heinous methods of execution, and put an end to it once and for all.

When Manhattan resident Daudi Justin was studying for his undergraduate degree at Columbia University in 2016, he received a jury summons. He was astonished to learn that he was permanently disqualified from serving on a jury because of a past felony conviction. Justin had been arrested for drug possession nearly a decade earlier, an experience in part that prompted him to pursue a law degree to fight for prisoners’ rights. Now a staff attorney with the Neighborhood Defender Service of Harlem, he represents clients in the same courts that bar him from sitting on juries.

Justin is co-lead plaintiff in a first-of-its-kind class-action lawsuit, Justin v. Tingling, filed in federal district court in Manhattan in December 2022 by the New York Civil Liberties Union (NYCLU). The case challenges the permanent exclusion of people with felony convictions from serving on juries. Decades of racialized policing and prosecution targeting Black residents have resulted in the mass disenfranchisement of Black people in Manhattan from the jury pool. A jury ban mocks the very idea of the equal administration of justice and the guarantee of an impartial jury.

“People [on juries] interpret things differently and may not understand the context of certain evidence that’s produced,” says Justin. “That’s why it’s harmful not having that diversity of perspective in the jury pool. We lose out on justice.”

Taking an approach that has proven effective in voter discrimination cases, the NYCLU is using statistical patterns of gross racial discrimination to argue against the jury ban in New York County. A favorable ruling could provide a legal blueprint for challenging similar criminal-record-based disqualifications state and nationwide. Manhattan has the worst disparities in arrest and conviction rates between Black people and white people of any county in the state. Approximately 25 percent of Manhattan’s otherwise eligible Black residents — a staggering 38,000 people — have been disqualified from jury service. Justin’s 2009 conviction came in the midst of a 20-year period during which Black people in Manhattan were convicted of felonies at a rate more than 21 times greater than white people. And the crime of which he was convicted — a remnant of the racist Rockefeller Drug Laws, which provided harsh sentences for drug offenses — is now classified as a misdemeanor.

The NYCLU also continues to advocate for the passage of the Jury of Our Peers Act, which would repeal New York’s lifetime categorical ban on jury service by people with past felony convictions. The bill, which will begin the 2024 legislative session on the chamber floor, moved through Assembly committees last year. In partnership with Assemblymember Jeffrion Aubry, the NYCLU has garnered support for this critical bill among advocacy groups and recruited co-sponsors.

Jury service is a fundamental right. It holds law enforcement, prosecutors, and judges accountable in a criminal legal system that is inherently biased.

“If more individuals who feel a certain way about the system are on the jury, they have the power to determine the cases,” says Justin. “So not only is jury duty participating in the democratic process, it’s also a way of exercising your political power.”

This article originally appeared in the ACLU magazine. Join us today to receive the next issue. The article has been updated to include current legislative advocacy efforts.

Last week, the National Policing Institute, in cooperation with the Department of Justice division on Community Oriented Policing Services, issued guidance to state and local law enforcement agencies on specialized units. NPI’s first recommendation is for law enforcement agencies to question whether they should create specialized units, and there’s an easy answer: no.

Specialized units vary but, as relevant here, they are sub-divisions of police departments tasked with enforcement related to specific conditions in an aggressive manner. The NPI guidance begins with a recognition that specialized units “are often subject to relatively limited supervision and afforded immense discretion when carrying out their duties.” This combination can lead to “tragic consequences.”

Indeed, the guidance was animated in part by the killing of Tyre Nichols in Memphis by officers from the Scorpion Unit — a specialized unit comprised of officers focused on crimes related to theft, gangs, and drugs. The Scorpion Unit stopped Nichols, a 29-year-old Black man, for a traffic infraction. They then pepper sprayed him and shot him with a stun gun despite his offering no apparent resistance. After yelling for help, Nichols ran toward his mother’s house. It wasn’t far from there that the officers — who had gone after him — beat him for several minutes while he was on the ground. He died days later from blunt force trauma to the head. Nichols’s family got the Scorpion Unit disbanded, with help from civil rights lawyer Ben Crump.

The Scorpion Unit was no aberration. In introductory remarks to its guidelines, NPI mentions the CRASH scandal in Los Angeles in the 1990s, during which a specialized unit tasked with addressing gang activity was found to be engaged in criminal conduct. The unit had repeatedly used excessive and at times lethal force without provocation. Another high-profile example is from New York City in 1999, when a specialized unit of the NYPD killed Amadou Diallo, a 23-year-old Black man. The unit — tasked with addressing gun violence — shot Diallo 41 times when he reached for his pocket to provide identification.

State and Local Governments Must Take Responsibility for Police Violence

It shouldn’t take a federal investigation to address violent and harmful practices.

Disbanding these units does not necessarily end the misconduct. In response to community outcry over the Diallo killing, the NYPD dismantled the responsible unit and created a new one — the Anti-Crime Unit — that supposedly had better training and oversight. The ACU went on to be a primary driver of unlawful stops in the early 2000s and, more recently, was found disproportionately responsible for shootings. Following the George Floyd protests in 2020, the ACU was disbanded only to be reconstituted in 2023 — again, with allegedly better training and oversight. Just a few months after the new rollout, however, a federal monitor found ACU to be unlawfully stopping Black and Latine people.

How, then, should police departments and communities decide whether forming a specialized unit is worth the risk? NPI recommends that law enforcement should consider a series of critical questions before deciding to create or continue a specialized unit. That’s the right starting point. And it’s also good that NPI’s list of key considerations includes whether the affected community prefers non-law enforcement alternatives. Yet this question is only meaningful if communities are given real alternatives, and they rarely are.

Asking communities to choose between a specialized unit or nothing is a false choice, and alternatives might not be viable without additional investments. Police departments often have a heavily resourced infrastructure with round-the-clock staffing. As NPI points out, this sometimes makes police a default candidate for addressing problems they are not suited to solve. While creating alternatives might require more time and money, we must build solutions that reduce mismatched reliance on police. Otherwise, we’re not actually improving safety in the long run.

Notably, determining community preferences should be a thoughtful and deliberate process that reflects an understanding that communities are not monolithic. We emphasize the need to seek input from people who have experienced police misconduct through forums police do not attend, which NPI also recommends. People who have been subjected to unfair policing — directly or as witnesses — have important insight into its manifestations and harms, and this insight is critical to designing effective solutions. Police attendance at forums soliciting input from this population might undermine participation, given mistrust and fear that result from oppressive policing.

We’re skeptical of specialized units because of their history of violence and abuse — a problem that has shown to persist despite improvements in training and oversight. Their vast discretion and the realistic limits of internal accountability mechanisms inures specialized units with too much power, which has proven too much risk to impacted communities. NPI’s guidelines offer important suggestions for limiting the harms caused by specialized units, and these recommendations should be followed if specialized units are to continue. If we want to keep people safe from both crime and police violence, though, we need to build something better.