MONTGOMERY, Ala. — An Alabama inmate who will become the nation’s first person ever put to death by nitrogen gas will ask a federal appeals court Friday to block the upcoming execution using the untested method.
Kenneth Smith, 58, will be executed Thursday, when a respirator mask will be placed on his face to replace his breathing air with pure nitrogen — depriving him of the oxygen needed to stay alive. Three states – Alabama, Oklahoma and Mississippi – have approved nitrogen hypoxia as an execution method, but no state has previously attempted to use it.
The 11th U.S. Circuit Court of Appeals will hear arguments Friday afternoon, when Smith’s attorneys will appeal a federal judge’s Jan. 10 decision to allow the execution to proceed, arguing that Alabama is trying to make Smith a “subject.” for an experimental execution method. after he survived the state’s previous attempt to put him to death by lethal injection in 2022. They claim the new nitrogen hypoxia protocol is riddled with unknowns and potential problems that could subject him to a painful death.
“Because Mr. Smith will be the first convicted person to be subjected to these proceedings, his planned execution is an experiment that would not be conducted or permitted outside this context,” Smith’s attorneys wrote in Monday’s filing. They also argued that the state violated his due process rights by scheduling the execution while he was still appealing.
Alabama Attorney General Steve Marshall’s office will ask the court to allow the execution to proceed. The state called Smith’s concerns speculative and predicted that the nitrogen gas “will cause unconsciousness within seconds and death within minutes.”
“Smith admits that inhaling 100% nitrogen gas would result in…death. And experts agree that nitrogen hypoxia is painless because it causes unconsciousness within seconds,” the state argued.
Lethal injection is the most commonly used method of execution in the United States, but as the drugs have become harder to obtain, states have sought alternative methods. If Smith’s execution is carried out by nitrogen hypoxia, it will be the first new execution method used in the United States since lethal injection was first used in 1982.
U.S. District Judge R. Austin Huffaker rejected Smith’s bid for an injunction to halt the execution earlier this month. Huffaker acknowledged that execution by nitrogen hypoxia is a new method, but noted that lethal injection — now the most common execution method in the country — was also once new.
Smith was one of two men convicted in 1988 of the murder-for-hire of a pastor’s wife. Prosecutors said Smith and the other man were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance. John Forrest Parker, the other man convicted in the case, was executed by lethal injection in 2010. Sennett’s husband committed suicide when the murder investigation focused on him as a suspect, court documents show.
Alabama attempted to execute Smith by lethal injection in 2022, but the state scrapped the execution before the lethal drugs were administered because authorities failed to connect the two required intravenous lines to Smith’s veins. Smith was strapped to the gurney for nearly four hours during that execution attempt, his lawyers said.
In a separate case, Smith has also argued that after surviving one execution attempt, it would violate the federal ban on cruel and unusual punishment for the state to make a second attempt to execute him. Smith asked the U.S. Supreme Court on Friday to stay the execution to consider that question. The filing came after the Alabama Supreme Court rejected Smith’s claim in a ruling last week.