Alabama can proceed with its plan to conduct the first execution in the U.S. with nitrogen gas after a federal appeals court wasn’t convinced Wednesday that the method violates the constitutional ban on cruel and unusual punishment.
Barring any last-minute court or state intervention, Kenneth Eugene Smith is set to die as soon as Thursday via nitrogen hypoxia, in which a person breathes only nitrogen and dies from a lack of oxygen.
The majority ruling from the 11th U.S. Circuit Court of Appeals concurs with another decision this month by a federal judge in Alabama that sided with the state Corrections Department in its attempt to use nitrogen gas in Smith’s execution.
“There is no doubt that death by nitrogen hypoxia is both new and novel,” the majority wrote in its opinion. “Because we are bound by Supreme Court precedent, Smith cannot say that the use of nitrogen hypoxia, as a new and novel method, will amount to cruel and unusual punishment in violation of the Eighth Amendment by itself.”
In a dissenting opinion, Circuit Judge Jill Pryor said she is worried about what might happen to Smith in the death chamber under an untested method.
“The cost, I fear, will be Mr. Smith’s human dignity, and ours,” she wrote.
Attorneys for Smith couldn’t immediately be reached for comment.
With the case pingponging among various courts, Smith’s lawyers had also petitioned the U.S. Supreme Court to review his case this month. The justices Wednesday rejected his request for a stay of execution, although the case could come before them again in the final hours based on other legal challenges.
Smith, 58, faces execution for his role in the 1988 murder-for-hire slaying of a preacher’s wife in Colbert County, Alabama.
Alabama approved the use of nitrogen hypoxia for executions in 2018, as the primary method of lethal injection has become increasingly difficult because of a shortage of the necessary drugs.
Smith had been set to die by lethal injection in November 2022, but the execution was called off when prison staff members were unable to find a suitable vein. That, in addition to other problems related to the use of lethal injection on inmates in Alabama, led the state to temporarily pause all executions.
Alabama jump-started its executions last summer but sought to put Smith to death by the alternative, nitrogen hypoxia, given the difficulties with the lethal injection.
At an appeals court hearing Friday, the circuit court judges listened to arguments by Smith’s defense team suggesting the unusual method of nitrogen hypoxia deserves additional scrutiny. Circuit Court Judge Charles Wilson pointed out that it was Smith who initially agreed to accept nitrogen hypoxia over lethal injection, although it was at a time when the state’s protocol hadn’t been developed.
Smith’s attorney, Robert Grass, responded that it’s not the method itself that is troubling but the unknowns surrounding Alabama’s protocol.
Nitrogen is a naturally abundant gas in the Earth’s atmosphere, but if it’s not mixed with an appropriate amount of oxygen, breathing it in can lead to adverse physiological effects, such as abnormal fatigue, impaired respiration, vomiting and even death, medical experts say.
The state says it would use a mask attached to Smith’s face to feed only nitrogen gas while he’s strapped to a gurney in the death chamber. But the outline of the procedure also includes heavily redacted passages related to how the oxygen-monitoring equipment is calibrated, how the nitrogen hypoxia system is operated, including various safety requirements, and the shutdown of the system.
Medical experts say even a small amount of oxygen’s getting into the mask when Smith is breathing nitrogen could prolong the time it takes for him to die, amounting to slow asphyxiation.
Smith’s legal team has argued that any fault with how the mask delivers nitrogen could subject him to “superadded pain.” They worry about the risk that he could vomit and choke, experience the sensation of feeling suffocated or potentially be left in a vegetative state.
A flurry of legal filings Wednesday sought to persuade the appeals court to either halt or continue the execution. Smith’s lawyers expressed concern that he had already been “vomiting repeatedly,” a “likely result” of the post-traumatic stress disorder he has suffered since the previous failed execution two years ago, they wrote.
But the state’s filing discredited the claim of Smith’s vomiting as uncorroborated, and as a precaution, it said, he would be given his final meal in the morning and be allowed only clear liquids through the day to limit the risk of choking at the time of the execution.
State Attorney General Steve Marshall said in a statement this month that the concerns raised by Smith are “speculative.”
Smith was 22 when a pastor, Charles Sennett, hired him and two other people for $1,000 each to kill his wife, Elizabeth, so he could collect on her life insurance, prosecutors said. Elizabeth Sennett, 45, was stabbed and beaten to death in her home.
One of her adult sons, Michael Sennett, said in an interview last month that in the end, he simply wants justice for his mother.
“It doesn’t matter to me how he goes out,” Sennett said of Smith, “so long as he goes.”
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